UNIVERSITY  OF  CALIFORNIA   SAN  DIEGO 


3  1822  02686  2391 


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LIBRARY  * 


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3  1822  02686  2391 


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ELEMENTS  OF  POLITICAL  SCIENCE 


ELEMENTS   OF 

POLITICAL    SCIENCE 


BY 


STEPHEN   LEACOCK,  B.A.,  Ph.D. 

ASSOCIATE  PROFESSOR  OF  POLITICAL  SCIENCE 
McGILL  UNIVERSITY,  MONTREAL 


BOSTON  AND  NEW  YORK 

HOUGHTON,  MIFFLIN  AND  COMPANY 

me  Riber^iDe  jDtej^itf,  Cambriti0e 

1906 


COPYRIGHT    1906   BY   STEPHEN   LEACOCK 
ALL    RIGHTS    RESERVED 


CONTENTS 

PART  I.  —  THE  NATURE   OF   THE  STATE 

I.   Political  Science,  the  Theory  of  the  State 

1.  Definition  and  Scope  of  Political  Science      ....  3 

2.  Relation  to  Other  Sciences 6 

3.  Meaning  of  the  State  ;  its  Essential  Attributes     .     .  12 

4.  The    Distinction    between    State,   Society,    Govern- 

ment, and  Nation 16 

5.  The  State  and  a  Common  Faith 19 

6.  The  Ideal  State 20 

II.  The  Origin  of  the  State  ;   Fallacious  Theories 

1.  Theory  of  the  Social  Contract 22 

2.  Application  made  of  the  Theory  by  Hobbes,  Locke, 

and  Rousseau 27 

3.  Criticism  of  the  Theory 31 

4.  The  Theory  of  Divine  Origin 34 

5.  The  Theory  of  Force 35 

III.  The  True  Origin  of  the  State 

1.  The  Historical  or  Evolutionary  View  of  the  State     .  41 

2.  The  Patriarchal  and  Matriarchal  Theories   ....  42 

3.  Course  of  Development :   the  Aristotelian  Cycle  .     .  46 

4.  Military  and  Economic  Factors 47 

5.  Some  General  Features  of  Political  Evolution        .     .  48 

IV.  The  Sovereignty  of  the  State 

1.  Analysis  of  the  Conception  of  Sovereignty  ;  Meaning 

of  Law  and  Right 52 

2.  The    Location  of   Sovereignty  in  Existing  Govern- 

ments 56 

3.  Criticism  of  the  Doctrine  of  Sovereignty  ;  Sir  Henry 

Maine's  Objections 58 

4.  Theory  of  Political  Sovereignty 63 

5.  Criticism 67 

6.  Dual  or  Divided  Sovereignty 09 


vi  CONTENTS 

V.  The  Liberty  of  the  Individual 

1.  Formulation  of  the  Idea  of  Civil  Liberty  ;  its  Depend- 

ence on  a  Coercive  Sovereign  Power 71 

2.  Special  Senses   sometimes  attached    to  the   Term 

Liberty 75 

3.  Organic  Theory  of  the  State 79 

4.  Criticism 80 

5.  Elaborate  Analogies  of  Spencer,  Schaffle,  etc.;  the 

Personality  of  the  State 82 

6.  Criticism 86 

VI.  Relation  of  States  to  One  Another 

1.  External  Aspect  of  the  State  ;  Regulation  of  its  Con- 

duct towards  Other  States 89 

2.  Evolution  of  International  Relations  ;  First,  Second, 

and  Third  Periods 91 

3.  Scope  and  Content  of  International  Law      ....  99 

4.  Propriety  of  the  Terra 100 

5.  International  Arbitration 104 

Vn.  The  Form  of  the  State 

1.  The  Classification  of  States  according  to  their  Form  ; 

Aristotle's  Divisions 110 

2.  Later  Classifications  ;  Montesquieu,  Rousseau,  Blunt- 

schli,  etc 116 

3.  Practical  Classification  of  Existing  States     ....     118 

4.  The  Constitution ;  Written  and  Unwritten  Constitu- 

tions     121 

5.  Origin  of  Written  Constitutions 123 

6.  The  Distinction  between  States  with  Written  and 

those  with   Unwritten    Constitutions  an    Illusory 
Basis  of  Division 128 

7.  Scope  of  the  Constitution 132 

8.  Amendment 134 

PART  II.  —  THE  STRUCTURE   OF   THE  GOVERNMENT 

I.  The  Separation  of  Powers 

1.  Nature  of  Executive,  Legislative,  and  Judicial  Power     141 

2.  Theory    of    the    Separation    of    Powers;     Montes- 
143 


quieu 


3.  Influence  of  this  Theory  in  America  and  France  .     .     145 


CONTENTS  vu 

4.  Extent    of    its    Application    in   Existing  Govern- 

ments  148 

5.  Continental  Administrative  Law 151 

6.  General  Criticism  of  the  Theory  of  the  Separation  of 

Powers 151 

II.  The  Legislature 

1.  The  Legislature  ;  General  Requisites,  Procedure,  etc.  154 

2.  The  Bicameral  System ;  Reasons  for  its  Adoption     .  159 

3.  Composition  of  Upper  Houses 162 

4.  Distribution  of  Power  between  the  Two  Houses    .     .  169 

5.  Direct  Legislation  ;  the  Initiative  and  the  Referen- 

dum     174 

III.  The  Executive 

1.  Concentration  of  Authority  the  First  Requisite  of  the 

Executive 181 

2.  Methods  of  Appointment ;  Hereditary  Executives     .  184 

3.  Elective  Executives 187 

4.  Presidential  and  Parliamentary  Government    •     .     .  191 

5.  Subordinate  Ofl&cials  and  the  Executive  ;  the  Civil 

Service 197 

rV.  The  Judiciary  and  the  Electorate 

1.  The  Judicial  Office  and  its  Tenure 207 

2.  The  Relation  of  the  Courts  to  the  Executive  and  to 

the  Legislature 210 

3.  Administrative  Law  and  Administrative  Courts     .     .     216 

4.  The  Electorate  :  Evolution  of   So-called  Universal 

Suffrage ;  the  Present  Suffrage  in  Leading  Coun- 
tries      218 

5.  Criticism  of  Existing  Systems ;  the  Case  of  Women, 

of  Negroes,  etc 224 

6.  Representation  of  Minorities 228 

V.  Federal  Government 

1.  Importance  of  the  Federal  Principle ;  its  Historical 

Development 233 

2.  The  Different  Kinds  of  Federations 237 

3.  Sovereignty  in  a  Federal  State 240 

4.  Utility  of  the  Federal  Principle  in  effecting  a  Com- 

promise     243 

5.  Distribution  of  Power  in  Federal  States       ....    244 
.  6.  Conclusions 253 


viii  CONTENTS 

VI.  Colonial  Government 

1.  The  Acquisition  of  Dependencies 258 

2.  Colonies  of  the  Ancient  World 261 

3.  Colonial  Expansion  after  the  Discovery  of  the  Sea 

Route  to  the  East  Indies  and  the  Discovery  of 
America ;  Spanish  Colonial  System       ....         262 

4.  Colonial  Policy  of  England  and  France  in  the  Seven- 

teenth and  Eighteenth  Centuries 2(>4: 

5.  The  American  Revolution 268 

6.  Alteration  of  British  Colonial  Policy  in  the    Nine- 

teenth Century ;    Establishment  of  Self-Govern- 

ment 271 

7.  Present  British  System  of  Colonial  Administration  275 

8.  Imperial  Federation 283 

9.  Recent  Colonial  Expansion  of  European  States     .     .  285 
10.  The  Dependencies  of  the  United  States- 287 

Vn.   Local  Government 

1.  Local  and  Central  Government  Distinguished  .     .     .     292 

2.  Areas    of    Local   Government ;   the    United    States, 

France,  England 296 

3.  Composition  and  Powers  of  Local  Governing  Bodies ; 

the  United  States 301 

4.  England 308 

5.  France 311 

6.  Prussia 315 

7.  Local   Taxation ;   the  Property  Tax  of  the   United 

States 316 

8.  Systems  of  Local  Taxation  in  Other  Countries       .     .     321 

9.  Reform  of  the  American  System 328 

VIII.   Party  Government 

1.  Conflict  of  Opinion  on  the  Merits  of  Party  Govern- 

ment     332 

2.  Origin  and   Development  of   the   Party  System   in 

England 336 

3.  Origin  and  Growth  of  Political  Parties  in  the  United 

States 338 

4.  The  Organization  of  American  Political  Parties    .     .  340 

5.  Reform  of  the  System 345 

6.  Party  Machinery  in  Great  Britain 348 

7.  The  Party  Groups  of  Continental  Europe     ....  350 


CONTENTS  ix 

PART  III.  —  THE  PROVINCE  OF  GOVERNMENT 

I.  Individualism 

1.  The  Individualistic  Theory  of  the  Functions  of  Gov- 

ernment   357 

2.  Individualism  as  based  on  a  Theory  of  Justice      .     .     359 

3.  Based  on  a  Theory  of  Profitability  ;  the  Doctrine  of 

Laissez  Faire 3G3 

4.  Based  on  a  Biological  Analogy  :  the  Survival  of  the 

Fittest 366 

5.  Conflicting  Forces 368 

II.  Socialism 

1.  The  Socialistic  Theory ;  its  Destructive  Criticism     .  371 

2.  The  Constructive  Programme  of  Socialism       .     .     .  375 

3.  The  German  Social  Democrats 378 

4.  Socialism  in  England  and  America 382 

III.   The  Mode»n  State 

1.  The  New  Environment 386 

2.  Theory  of  Protection  to  Industry 389 

3.  Modern  Protective  Tariffs 393 

4.  Interference    with    Competitive    Prices ;  Trust   and 

Railroad  Legfislation 394 

5.  Government  Interference  on  Behalf  of  the  Working 

Class ;  Factory  Laws,  State  Insurance,  and  Pen- 
sions     403 

6.  Municipal  Control 406 

Index 411 


PART  I 

THE  NATURE  OF  THE  STATE 


CHAPTER  I 

POLITICAL  SCIENCE,  THE  THEORY  OF  THE  STATE 

1.  Definition  and  Scope  of  Political  Science.  —  2.  Relation  to  Other 
Sciences.  —  3.  Meaning  of  the  State  ;  its  Essential  Attributes.  — 
4.  The  Distinction  between  State,  Society,  Government,  and  Nation. 
—  5.  The  State  and  a  Common  Faith.  —  6.  The  Ideal  State. 

1.   Definition  and  Scope  of  Political  Science. 

A  treatise  on  political  science  must  naturally  begin 
with  some  discussion  as  to  the  scope  and  province  of 
the  science  itself,  and  its  relation  with  the  other  branches 
of  human  knowledge  of  a  kindred  character.  This  is  es- 
pecially necessary  for  two  reasons.  In  the  first  place  the 
term  political  science  has  been  used  with  a  good  deal  of 
latitude,  not  to  say  ambiguity,  both  in  colloquial  lan- 
guage and  in  scientific  discussion.  In  the  second  place 
the  relationship  between  this  and  various  other  depart- 
ments of  knowledge,  such  as  jurisprudence,  history,  and 
economics  is  an  extremely  intimate  one.  It  is  neces- 
sary, therefore,  to  endeavor  as  accurately  as  may  be  to 
define  the  proper  field  of  political  science,  and  to  in- 
dicate its  connection  with  other  branches  of  learning. 

An  elaborate  definition  may  better  be  reserved  for 
later  consideration.  For  the  present  a  simple  and  con- 
venient starting-point  may  be  found  in  the  statement, 
inadequate  though  it  is,  that  political  science  deals 
with  government.  The  word  government,  used  in  its 
widest  sense,  rests  on  the  fundamental  idea  of  control 
and  obedience  ;  it  implies  authority,  and  a  submission 


4  THE   NATURE   OF   THE   STATE 

to  that  authority.  It  thus  calls  before  our  minds  a 
phenomenon  which  may  be  considered  almost  coexten- 
sive with  human  society  as  it  at  present  exists,  and 
which  reaches  back  into  the  past  almost  as  far  as  the 
history  of  human  society  itself.  True  it  is  that  as  we 
follow  its  retreat  into  the  remote  periods  of  history,  it 
recedes  with  a  diminishing  outline  that  tends  towards 
an  unseen  vanishing-point.  But  in  this  it  only  shares 
in  a  characteristic  common  to  all  the  products  of  social 
evolution. 

Now  the  phenomenon  of  government,  as  we  view  it  in 
the  past  and  in  the  present,  shows  anything  but  a  uni- 
form appearance.  It  differs  constantly  in  its  form,  it 
differs  in  its  scope  and  purpose,  and  differs  most  no- 
tably in  the  varying  degrees  of  its  complexity.  These 
divergences  in  the  concrete  aspect  of  government  are 
seen  at  once  by  comparing  the  rude  organization  by 
which  a  primitive  pastoral  tribe  is  held  in  loose  cohesion, 
the  city  state  of  the  Greeks,  the  feudal  system  of  the 
middle  ages,  and  the  intricate  mechanism  of  the  modern 
national  state.  It  is  out  of  these  variations  offered  by 
the  different  types  of  human  organization  in  which  the 
common  element  of  government  is  contained  that  polit- 
ical science  arises.  In  all  branches  of  investigation  it 
is  the  diversities  and  not  the  similarities  of  observed 
phenomena  that  afford  the  primary  motive  for  specula- 
tion. In  the  physical  world  the  diversities  of  form, 
function,  and  sti'ucture  among  plants  and  animals  give 
occasion  to  the  investigations  of  the  botanist  and  the 
naturalist.  If  all  plants  and  animals  had  been  of  a  uni- 
form fashion  and  function  their  similarity  would  have 
been  accepted  as  a  matter  of  course.   It  is  the  fact  that 


THE   THEORY   OF  THE   STATE  5 

this  similarity  does  not  exist  that  gives  the  initial  stim- 
ulus to  man's  investigations.  Similarly  in  the  domain 
of  human  institutions  the  heterogeneous  and  complex 
appearance  of  the  phenomena  in  question  affords  the 
basis  of  political  science.  Its  field  lies  in  the  exami- 
nation and  analysis  of  the  varying  forms  of  human 
oro^anization  in  which  the  element  of  social  control  is 
embodied. 

At  this  point  emerges  a  further  analogy  between  the 
study  of  our  physical  and  social  environment.  In  each 
case  the  phenomena  observed  are  found  to  be  in  a 
constant  state  of  change  and  movement.  New  forms 
replace  the  old,  the  whole  representing  a  graded  series 
of  ascending  complexity  in  which  higher  and  higher 
structures  correspond  to  functions  increasingly  elabo- 
rate. In  the  physical  world,  life,  from  being  simple  and 
rudimentary,  becomes  complex  and  differentiated.  New 
organs  are  developed  and  higher  functions  performed. 
In  the  superorganic  world  the  process  of  social  evolu- 
tion is  continuous.  Here  too  are  successive  stafjes  of 
progress  in  which  the  form  and  character  of  human 
institutions  undergo  an  unceasing  alteration  in  accord- 
ance with  the  changing  environment  of  social  growth. 
The  study  of  governmental  forms  must  therefore  in 
an  eminent  degree  be  a  comparative  and  historical 
study.  It  must  not  content  itself  with  a  mere  analysis 
of  political  institutions  as  existing  at  any  given 
point  of  time  ;  it  must  take  account  of  the  process  of 
change  and  evolution  and  the  alteration  of  social  and 
intellectual  environment.  This  is  what  is  meant  by  the 
statement  that  the  investigations  of  political  science 
must  be  of  a  dynamic  and  not  a  static  character.  They 


6  THE   NATURE   OF  THE   STATE 

must  be  directed  towards  the  proper  interpretation  of 
movements  and  tendencies  in  addition  to  the  analysis 
of  the  status  and  structure  of  existing  institutions. 
The  organized  aspect  of  the  community,  the  state, 
must  be  treated  not  only  as  an  actuality,  but  also  as  a 
product  of  the  past,  and  as  the  basis  of  the  life  of  the 
future. 

2.  Relation  to  Other  Sciences.  Herein  appears 
the  connection  between  history  and  political  science,  a 
connection  somewhat  difficult  to  state  in  precise  terms 
without  making  one  of  the  two  assume  a  subordinate 
character.  There  is  indeed  a  natural  tendency  on  the 
part  of  the  political  scientist  to  view  history  some- 
what in  the  light  of  mere  raw  material,  and  an  equally 
natural  tendency  on  the  pai't  of  the  historian  to  view 
political  science  somewhat  in  the  light  of  an'eman^ 
tibn,  one  might  almost  say  ai^  e^prescencej  of  history. 
It  may  with  fairness  be  said  that  the  two  studies  are 
mutually  contributory  and  complementary.  Political 
science  would  certainly  be  impossible  without  history ; 
history  would  lose  its  main  significance  without  at  least 
an  unconscious  political  science.  The  facts  of  history 
—  not  all  of  them,  but  such  as  are  significant  for  the 
study  of  institutions  —  constitute  a  part  of  the  ground- 
work of  political  science ;  not,  it  is  to  be  noted,  the 
whole  groundwork,  for  political  science  must  also 
build  upon  ethical  and  psychological  foundations.  Thus 
one  might  be  tempted  to  employ  the  terminology  of 
the  logician  and  say  that  some  of  history  is  part  of 
political  science,  the  circles  of  their  contents  over-lap- 
ping an  area  enclosed  by  each.  Hence  it  is  that  in  the 
subdivisions  of  political  science  offered  by  some  writers 


THE  THEORY   OF  THE   STATE  7 

"  historical  political  science,"  or  the  history  of  political 
institutions,  is  one  branch  of  the  main  subject.^  The 
connection  between  these  allied  branches  of  knowledge 
has  been  well  indicated  by  Professor  Seeley,  who  tells 
us  that  political  science  is  the  fruit  of  history,  and 
history  is  the  root  of  political  science.^  A  recent 
American  writer  ^  has  illustrated  the  relationship  in  a 
still  more  striking  manner  by  saying  that  history  offers 
the  third  dimension  of  political  science. 

But  while  commenting  on  the  intimate  interdepen- 
dence of  these  two  branches  of  learning,  their  essential 
difference  must  not  be  forgotten.  Political  science  has 
no  concern  with  history  in  its  purely  narrative  aspect; 
it  has  no  interest  in  the  mere  cumulation  of  instances ; 
nor  has  it  any  interest  in  the  military,  commercial,  or 
economic  aspects  of  history  as  such  ;  only  in  so  far  as 
these  bear  upon  the  evolutio^of  organized  social  con- 
trol, only  so  far  as  they  elucidate  the  nature  of  the 
state,  are  they  of  import  for  the  student  of  political 
science.  The  latter  must  revert  to  history  for  much  of 
the  material  of  his  study,  but  always  in  an  eclectic  or 
selective  fashion,  coordinating  his  facts  with  a  view  to 
their  special  significance.  Thus,  for  example,  the  history 
of  the  Puritan  colonies  of  North  America  is  of  primary 
interest  to  the  student  of  political  science  as  illustrat- 
ing the  growth  of  democratic  self-government,  the  pro- 
gressive application  of  the  federal  principle  of  political 

1  Compare  W.  W.  Willoughby,  The  Nature  of  the  State,  chap.  i. 

^  J.  R.  Seeley,  Introduction  to  Political  Science.  Compare  also  the 
following :  "  The  science  of  politics  is  the  one  science  that  is  deposited 
by  the  stream  of  history,  like  the  grains  of  gold  in  the  sand  of  a  river." 
Lord  Acton,  The  Study  of  History. 

^  W.  W.  Willoughby,  op.  cit. 


8  THE  NATURE   OF  THE  STATE 

consolidation,  the  relations  of  clmrch  and  state,  and 
tlie  evolution  of  written  constitutions.  The  economic 
life  of  the  colonies  is  of  only  secondary  and  indirect  im- 
portance. The  religious  controversies  of  the  period  as 
such,  the  romantic  aspects  of  the  history  of  the  time,  — 
the  adventurous  intercourse  of  settlers  and  savages, 
the  changes  of  manners,  sjjeech,  and  costume  occasioned 
by  the  new  environment,  have  still  less  bearing  on  the 
problems  of  political  science.  Similarly  the  domain  of 
the  historian  has  its  distinct  limitations.  Dr.  Georg 
Jellinek  accurately  circumscribes  the  province  of  his- 
tory as  follows :  "  History  presents  to  us  not  only  facts 
but  the  causal  connection  between  the  facts.  It  dif- 
fers, however,  from  the  theoretical  sciences  in  that  it  al- 
ways examines  concrete  cases  of  cause  and  effect,  never 
abstract  types  and  laws.  If  the  historian  undertakes 
this  he  passes  the  bounds  of  his  own  province  and 
becomes  a  philosopher  of  history  or  a  sociologist.  It  is 
true  that  no  historian  will  be  willing  entirely  to  forego 
this  higher  aspect  of  history,  but  there  is  no  science 
which  offers  to  its  students  a  complete  self-sufficiency."  * 
Political  science  stands  also  in  close  relation  to  po- 
litical economy.  The  purpose  of  the  latter  is  to  investi- 
gate "  man's  activity  in  pursuit  of  wealth."  ^  It  deals 
with  the  production  and  distribution  of  wealth  under 
the  influence  of  forces  both  material  and  psychologi- 
cal.   Inasmuch  as  the  production  and  distribution  of 

1  liecht  des  Modernen  Staates,  vol.  i,  chap.  i. 

^  "  Political  Economy,  or  Economics,  is  a  study  of  mankind  in  the 
ordinary  business  of  life  ;  it  examines  that  part  of  individual  and  social 
action  which  is  most  closely  connected  with  the  attainment  and  with 
the  use  of  the  material  requisites  of  well  being."  Marshall,  Principles 
of  Economics,  vol.  i,  bk.  i,  ch.  i. 


THE  THEORY   OF  THE   STATE  9 

material  wealth  is  very  largely  conditioned  by  the  ex- 
istinsr  form  of  ofovernment  and  the  institutional  basis 
of  economic  life,  the  study  of  political  economy  is 
brought  into  an  intimate  relation  with  that  of  political 
science.  The  system  of  the  English  school  of  classical 
economists,  ^or  insl^ance,  is  presumed  to  flow  from  the 
original  postulates  of  jjrivate  individual  property,  of 
unimpeded  contract  under  a  social  sanction,  and  a 
mobility  of  the  strata  of  society  unhindered  by  non-eco- 
nomic forces.  Conversely  it  is  also  true  that  political 
institutions  are  greatly  affected  by  economic  circum- 
stances. The  particular  form  of  government  existing 
at  any  period  and  place,  and  the  direction  and  extent 
of  its  activity,  are  largely  dependent  on  the  economic 
life  of  the  community  in  question.  Thus  one  would 
naturally  expect  the  political  institutions  of  a  migratory 
pastoral  tribe  to  differ  from  those  of  a  community 
deriving  its  support  from  a  fixed  form  of  agriculture, 
while  each  of  them  would  differ  in  the  form  and  char- 
acter of  its  government  from  a  manufacturing  popu- 
lation centred  in  great  cities.  The  state,  in  a  word,  is 
conditioned  by  its  economic  environment.^  Nor  is  it 
only  in  their  fundamental  bases  that  the  sciences  of 
economics  and  politics  stand  in  close  relation,  for  many 
specific  subjects  of  inquiry  belong  in  a  measure  to  each 
of  them.  Such  questions  as  the  social  control  of  mono- 
poly, the  governmental  management  of  railroads,  and 
the  municipal  ownership  of  public  utilities  present  both 
an  economic  and  a  political  aspect.  To  the  economist 
the  problem  is  one  of  economic  efficiency  and  equitable 

^  The  line  of  thought  here  sug'g'ested  forms  the  basis   of   what  is 
called  the  materialistic  theory  of  history.   See  below,  chap.  iii. 


10  THE   NATURE   OF  THE    STATE 

distribution  ;  to  the  student  of  political  science  it  is  a 
question  of  administrative  organization.^ 

The  relation  of  political  science  to  various  other 
branches  may  be  discussed  more  briefly.  Constitu- 
tional law,  the  analysis  of  the  organization  of  a  par- 
ticular state  at  a  particular  time,  would  seem  to  be 
best  classed  as  a  subdivision  of  political  science,  or 
at  any  rate  to  cover  a  large  field  in  common  with  it. 
Opinion  might  also  differ  as  to  whether  international 
law,"  dealing  with  the  relation  of  states  with  one  an- 
other, should  more  properly  be  classed  as  an  included 
or  only  a  kindred  subject.  It  may  at  any  rate  be  said 
that  in  measure  as  international  relations  develop  into 
the  fixity  of  a  true  international  law,  —  a  code  enforced 
by  a  recognized  authority,  —  so  does  international  law 
become  merged  in  the  domain  of  political  science.  Last 
of  all  may  be  mentioned  the  relative  position  of  politi- 
cal science  and  sociology.  Here  the  former  must  be 
considered  in  the  light  of  an  included  portion  of  the 
more  general  field.  Sociology  deals  not  only  with 
organized  communities,  but  also  with  communities  in 
which  the  element  of  social  control  is  as  yet  feebly  dif- 
ferentiated. It  deals  not  only  with  the  legal  and  coercive 
relationshii)  of  man  with  his  fellows,  but  also  with  the 

^  The  ambiguous  relation  in  which  the  terms  "  political  science  "and 
"  political  economy  "  stand  to  one  another  is  rendered  still  more  con- 
fusing' by  the  divergent  usages  of  leading  American  universities.  At 
Harvard  "  Economics  "  is  a  subdivision  of  the  department  of  "  History 
and  Political  Science."  At  Yale  both  "  Economics  "  and  "  Politics  " 
appear  under  the  departmental  title  of  "  Social  Sciences."  At  Chicago 
"  Political  Economy  "  and  "  Political  Science  "  constitute  separate  de- 
partments. 

-  Jellinek  considers  international  law  a  branch  of  jurisprudence 
(Rechtswissenscha/t) ,  which  is  itself  a  subdivision  of  political  science. 


THE  THEORY   OF  THE   STATE  11 

evolution  and  status  of  customs,  manners,  religion,  and 
economic  life.  Most  important  is  it  to  observe  that  so- 
ciology treats  not  only  of  conscious  but  also  of  uncon- 
scious social  activities.^  How  far  such  a  science  can  be 
anything  more  than  a  group  of  subdivisions,  or  a  name 
for  a  sort  of  general  wisdom  in  regard  to  man's  social 
environment,  gained  from  specific  studies,  is  perhaps 
open  to  question.  Certainly  in  the  hands  of  many  of  its 
exponents  it  seems  to  lose  in  intensity  what  it  gains 
in  width.  Nevertheless,  if  one  accepts  the  "  science  of 
society  "  on  its  own  terms,  it  is  proper  to  consider  that 
it  includes  political  science  as  one  of  its  subdivisions. 
On  this  basis  one  may  proceed  to  a  formal  definition  of 
political  science,  which  may  best  be  accepted  in  the 
form  offered  by  Paul  Janet :  "  Political  Science  is  that 
part  of  social  science  which  treats  of  the  foundations 
of  the  State,  and  of  the  principles  of  government."  Be- 
side this  may  be  placed  the  definition  of  J.  K.  Blunt- 

1  "  Of  all  the  multifarious  projects  for  fixing  the  boundary  which 
marks  off  political  from  the  more  general  social  science,  that  seema 
most  satisfactory  which  bases  the  distinction  on  the  existence  of  a  po- 
litical consciousness.  Without  stopping  to  inquire  too  curiously  into  the 
precise  connotation  of  this  term,  it  may  safely  be  laid  down  that  as  a 
rule  primitive  communities  do  not,  and  advanced  communities  do  mani- 
fest the  political  consciousness.  Hence,  the  opportunity  to  leave  to  so- 
ciology the  entire  field  of  primitive  institutions,  and  to  regard  as  truly 
political  only  those  institutions  and  those  theories  which  are  closely 
associated  with  such  manifestation."  W.  A.  Dunning,  History  of  Po- 
litical Theories,  Ancient  and  Mediaeval,  Introduction,  xvi.  —  But  com- 
pare with  this  the  following :  "  Human  society  truly  begins  when  social 
consciousness  and  tradition  are  so  far  developed  that  all  social  relations 
exist  not  only  objectively  as  physical  facts  of  association,  but  subjec- 
tively also  in  the  thought,  feeling,  and  purpose  of  the  associated  indi- 
viduals." Giddings,  Theory  of  Sociology  {Annals  Am.  Acad.  Pol.  and 
Sac.  Science,  1894). 


12  THE  NATURE  OF  THE   STATE 

schli,  which  draws  especial  attention  to  the  dynamic 
nature  of  the  study  involved :  "  Political  Science  is 
the  science  which  is  concerned  with  the  State,  which 
endeavors  to  understand  and  comprehend  the  State  in 
its  conditions,  in  its  essential  nature,  its  various  forms 
and  manifestations,  its  development."  ^ 

3.  Meaning  of  the  State;  its  Essential  Attri- 
butes. Political  science,  then,  deals  with  the  state ;  it 
is,  in  short,  as  it  is  often  termed,  ^  the  "  theory  of  the 
state."  The  word  "  state  "  is  sufficiently  familiar  to  have 
been  used  in  the  preceding  discussion  without  explana- 
tion. It  is  now  necessary  to  make  a  nearer  analysis 
of  the  exact  meaning  to  be  attached  to  the  term.  An 
examination  of  the  ordinary  senses  in  which  the  word 

1  For  convenient  comparison  the  following  definitions  of  allied  sci- 
ences may  here  be  noted  :  — 

(1)  Sociology.  "Sociology,  defined  as  the  science  of  social  phe- 
nomena, includes  all  of  these  social  sciences  (that  is,  economics,  politics, 
history,  etc.) ;  but  in  this  general  use  of  the  term  it  is  not  a  distinct  sci- 
ence, but  rather  the  name  for  a  body  of  knowledge,  including  several 
sciences.  The  more  definite  sphere  of  sociology  as  a  science  is  indi- 
cated when  we  recognize  that  each  of  the  sciences  dealing  with  social 
phenomena  involves  a  theory  as  to  the  nature  of  society."  A.  Fair- 
banks, Introduction  to  Sociology.  "  I  am  tempted  to  define  Sociology 
as  the  science  of  associated  humanity,  that  is,  of  humanity  so  far  as  it 
is  united  and  so  far  as  it  is  associated."  J.  H.  W.  Stuckenberg,  In- 
troduction to  the  Study  of  Sociology.  All  the  writers  on  sociology  dis- 
cuss its  claim  to  existence  as  a  science,  'though  formal  definitions  are 
few.  Compare  Herbert  Spencer,  Study  of  Sociology,  chap,  ii ;  De  Greef , 
Introduction  d,  la  Sociologie,  part  i,  chap,  i ;  Small  and  Vincent,  Intro- 
duction to  the  Study  of  Society,  bk.  i,  etc. 

(2)  Jurisprudence.  Jurisjirudence  is  the  "  formal  science  of  those 
relations  of  mankind  which  are  gener.ally  recognized  as  having  legal 
consequences.  ...  It  may  ...  be  defined  provisionally  .is  the  formal 
science  of  positive  law."    T.  E.  Holland,  Elements  of  .hiriftprudence. 

2  See,  for  example,  M'Kechnie,  The  State  and  the  Individual,  Introd. 


THE  THEORY   OF  THE   STATE  13 

is  used  shows  at  once  a  considerable  latitude  in  its 
employment.  Thus  when  we  speak  of  the  different 
"  states  "  of  Christendom,  or  refer  to  France,  Germany, 
etc.,  as  the  leading  states  of  Europe,  the  word  seems 
roughly  to  correspond  with  such  terms  as  country,  in- 
ternational power,  etc.  When  on  the  other  hand  we 
talk  of  the  relations  existing  between  the  "  church  and 
the  state,"  we  have  no  reference  to  international  affairs; 
the  idea  implied  is  rather  that  of  association  or  organi- 
zation. Again,  in  such  uses  as  "  The  State  and  the  Indi- 
vidual "  (the  title  of  the  recent  work  on  political  science 
already  mentioned),  or  in  the  title  of  one  of  Herbert 
Spencer's  books,  "  The  Man  versus  the  State,"  the  word 
is  plainly  used  to  imply  a  contrast  between  the  individ- 
ual citizen  and  the  collective  aspect  of  the  community. 
Finally,  in  such  phrases  as  "  state  aid  to  the  poor," 
"  state  control  of  railroads,"  etc.,  what  is  thought  of  is 
not  so  much  the  community  collectively  as  the  special 
machinery  or  organized  agency  through  which  the  com- 
munity acts. 

Out  of  the  different  elements  here  embodied  we  may 
construct  an  exact  conception  of  what  is  meant  by  the 
state  in  the  technical  language  of  political  science.   It 
embodies  as  the  factors  of  which  it  is  composed :  — 
I.  A  territory. 
II.  A  population. 

III.  Unity. 

ly.  Orofanization.  ^ 


'■a'- 


^  The  requisites  are  thus  stated  by  Bluntschli.  He  prefers  to  add 
"  sovereig-nty,"  a  factor  which  seems,  however,  to  result  from  the  combi- 
nation of  the  last  two  given  above,  and  the  nature  of  which  is  consid- 
ered in  a  later  chapter  (part  i,  ch.  iv). 


14  THE  NATURE  OF  THE  STATE 

Let  us  briefly  examine  these  in  turn.  Without  a  defi- 
nite territory  there  can  be  no  state.  The  Jews,  being 
scattered  abroad  and  dissociated  from  the  occupation 
and  control  of  any  particular  territory,  do  not  constitute 
a  state.  Professor  Holland  in  the  definition  g-iven  in  his 
"  Elements  of  Jurisprudence,"  speaks  of  a  "  numerous 
assemblage  of  human  beings  generally  occupying  a  cer- 
tain territory."  But  it  seems  advisable  to  insist  on  the 
idea  of  land  being  necessary.  Equally  necessary  is  a 
population.  It  goes  without  saying  that  an  uninhabited 
portion  of  the  earth,  taken  in  itself,  cannot  form  a 
state.  The  third  requisite  is  said  to  be  unity.  By  this 
is  meant  that  the  territory  and  population  in  question 
must  form  no  part  of  a  wider  political  unit ;  nor  must 
the  territory  contain  any  portion  or  portions  which  while 
forming  geographically  a  part  of  it,  are  not  a  part  of  it 
politically.  The  island  of  Haiti  is  a  geographical  unit, 
but  being  divided  into  the  separate  republics  of  Haiti 
and  Santo  Domingo,  does  not  present  the  unity  required 
to  constitute  a  state.  In  the  same  way  the  separate 
"  states  "  of  the  American  Union  are  not  states  in  the 
technical  sense  of  the  term,  since  each  forms  part  of 
the  single  political  entirety  known  as  the  United  States. 
The  United  States  as  a  totality  constitutes  a  state ; 
the  "  state  "  of  Massachusetts  does  not.  The  final  re- 
quisite, that  of  organization,  is  one  that  must  be  care- 
fully noted.  Even  granting  that  we  have  a  territory 
and  jiopulation  disconnected  from  the  rest  of  the  world, 
and  thus  in  a  sense  a  unit,  we  have  not  yet  a  state. 
Imagine,  for  example,  that  a  "  numerous  assemblage  of 
human  beings,"  to  use  Professor  Holland's  phrase,  were 
deposited  upon  some  uninhabited  island  not  owned  or 


THE   THEORY   OF  THE   STATE  15 

controlled  by  any  existing  government.  Here  we  should 
have  land  and  population  and  unity,  but  the  inhabitants, 
having  as  yet  no  cohesion  or  connection,  would  not 
form  a  state.  Imagine  however  that  these  inhabitants, 
being  persons,  we  may  suppose,  accustomed  to  live 
under  a  settled  government,  should  agree  to  form  them- 
selves into  an  organized  body  and  to  vest  the  control 
of  all  of  them  in  the  hands  of  certain  among  their 
number.  We  should  then  have  a  state.  Or  let  us  im- 
agine a  very  different  state  of  affairs.  Suppose  that  a 
certain  number  of  the  inhabitants  were  enabled  by  their 
superior  physical  force  or  cunning  to  reduce  the  others 
to  a  condition  of  submission,  so  that  settled  relations  of 
control  and  obedience  were  established.  In  this  case  too 
there  would  be  a  state.  For  the  organization  needed  to 
constitute  a  state  need  not  be  one  established  by  mutual 
consent  or  one  of  an  equitable  nature.  The  mere  exist- 
ence of  settled  obedience  to  a  sujjerior,  coercive  force 
is  all  that  is  required.  Any  form  of  despotism  or  tyr- 
anny which  fulfills  these  conditions  establishes  a  polit- 
ical state  just  as  much  as  does  a  government  whose 
authority  rests  on  a  general  acquiescence. 

Such,  then,  is  the  nature  of  the  state.  As  formal 
definitions  we  may  cite  the  following.  (1)  "  A  State  is  a 
people  organized  for  law  within  a  definite  territory  " 
(Woodrow  Wilson).^  (2)  "  The  body  or  community  which 
thus  by  permanent  law,  through  its  organs  administers 
justice  within  certain  limits  of  territory  is  called  a 
State  "  (Theodore  Woolsey).^  A  more  elaborate  defi- 
nition, the  full  bearing  of  which  will  appear  in  our  dis- 
cussion of  sovereignty,  is  given  by  Professor  Holland : 
1  W.  Wilson,  The  State.  2  x.  Woolsey,  Political  Science. 


16  THE   NATURE   OF  THE   STATE 

"A  State  is  a  numerous  assemblage  of  human  beings, 
generally  occupying  a  certain  territory,  amongst  wliom 
the  will  of  the  majority  or  of  an  ascertainable  class  of 
persons  is,  by  the  strength  of  such  a  majority  or  class, 
made  to  prevail  against  any  of  their  number  who  op- 
pose it."  ^ 

4.  The  Distinction  between  State,  Society, 
Government,  and  Nation.  The  meaning  to  be  at- 
tached to  the  word  state  will  be  rendered  more  precise 
by  distinguishing  it  from  society,  government,  and 
nation.  The  term  society  has  no  reference  to  territorial 
occupation  ;  it  refers  to  man  alone  and  not  to  his  en- 
vironment. But  in  dealing  with  man  its  significance 
is  much  wider  than  that  of  state.  It  applies  to  all  hu- 
man communities,  whether  organized  or  unorganized. 
It  suggests  not  only  the  political  relations  by  which 
men  are  bound  together,  but  the  whole  range  of  human 
relations  and  collective  activities.  The  study  of  society 
involves  the  study  of  man's  religion,  of  domestic  insti- 
tutions, industrial  activities,  education,  crime,  etc.  The 
term  government,  on  the  other  hand,  is  narrower  than 
state.  It  refers  to  the  person  or  group  of  persons 
(which  in  a  modern  community  will  be  very  numerous) 
in  whose  hands  the  organization  of  the  state  places  for 
the  time  being  the  function  of  political  control.  The 
word  is  sometimes  used  to  indicate  the  persons  them- 
selves, sometimes  abstractly  to  indicate  the  kind  and 
composition  of  the  controlling  group.  The  ordinary 
citizens  of  a  community  are  a  part  of  the  state,  but 
are  not  part  of  the  government.  The  term  has  more- 
over no  reference  to  territory.  The  distinction  will 
^  T.  E.  Holland,  Elements  of  Jurisprudence, 


THE   THEORY   OF  THE   STATE  17 

appear  more  evident  in  our  subsequent  discussion  of 
sovereignty.^ 

In  the  next  place  it  is  to  be  observed  that  nation 
and  state  are  two  distinct  conceptions.  The  term 
nation,  though  often  loosely  used,  is  properly  to  be 
thought  of  as  having  a  racial  or  ethnographical  signifi- 
cance. It  indicates  a  body  of  people  —  the  Germans, 
the  French,  the  Hungarians,  etc.  —  united  by  common 
descent  and  a  common  language.  But  such  divisions 
by  no  means  coincide  with  the  political  divisions  of  the 
civilized  world  into  states.  Austria-Hungary  consti- 
tutes a  single  state,  but  its  population  is  made  up  of 
members  of  a  great  many  different  races.  The  political 
division  of  the  civilized  world  into  states  freely  inter- 
sects with  the  division  into  races,  although  sometimes 
the  political  units  —  as  in  the  case  of  modern  France 
—  are  almost  coincident  with  the  ethnographic.  The 
relation  between  political  organization  and  nationality 
has  been  a  changing  one.  In  the  classical  world,  in 
the  city  states  of  ancient  Greece  and  Italy,  kinship 
among  the  citizens  was  considered  an  elemental  factor 
in  the  composition  of  the  state.  In  ancient  Athens 
and  Sparta  persons  of  alien  race  were  not  considered 
as  members  of  the  political  community.  Hence  in  the 
political  thought  of  classical  Greece  the  conception  of 
the  state  is  limited  to  a  small  area  occupied  by  persons 
of  the  same  race.     In  the  Roman  world,  the  original 

^  Professor  Burgess  in  his  Political  Science  and  Constitutional  Law 
adopts  a  different  basis  of  distinction  :  "  state  "  and  "  government  "  are 
each  made  to  refer  to  the  organs  of  social  control  and  not  to  the  terri- 
tory or  population  ;  the  latter  term  designates  the  ordinary  mechanism 
of  admixnstration,  the  former  the  supreme  body  having  absolute  legal 
power.     See  vol.  i,  Political  Science  and  Constitutional  Law. 


18  THE   NATURE   OF  THE   STATE 

conception  of  a  city  state  with  a  common  nationality 
was  transformed  by  the  process  of  absorption  and  con- 
quest into  the  larger  conception  of  a  world-wide  state 
and  universal  sovereignty.  Nationality  is  here  lost 
from  sight.  The  foreign  nations  occupying  the  sub- 
jugated provinces  were  recognized  by  virtue  of  the 
Emperor  Caracalla's  act  of  general  enfranchisement 
(a.  d.  212)  as  citizens  of  the  universal  empire.  Such 
a  conception,  as  will  be  seen  in  a  later  chapter,  long 
survived  as  the  basis  of  European  polity,  though 
existing  only  in  the  shadowy  form  of  the  titular 
Holy  Roman  Empire.  In  actual  fact,  however,  it  was 
displaced  by  other  political  conceptions.  Feudalism 
brought  with  it  the  notion  of  territorial  sovereignty 
and  dynastic  supremacy.  A  state  became  coincident 
with  the  domain  owned,  if  one  may  use  the  term,  by 
a  particular  house  and  its  descendants,  and  quite  iri*e- 
spective  of  the  nationalities  of  the  subject  peoples. 
States  were  formed  out  of  communities  of  varying 
nationalities  by  inheritance,  by  cession,  by  marriage  of 
their  sovereigns.  Witness  for  example  the  sovereignty 
of  Henry  II  over  Anjou,  Aquitaine,  etc.;  the  claim  of 
Edward  III  to  the  crown  of  France;  and  at  a  later 
date,  the  empire  of  Charles  V,  who  inherited  Bur- 
gundy, Spain,  part  of  Italy,  and  various  Austrian 
territories.  To  a  large  extent  this  political  fusion  has 
fortunately  been  accompanied  by  a  fusion  of  languages, 
as  in  the  amalgamation  of  modern  France. 

It  was  in  the  nineteenth  century  that  the  claim  of 
nationality  as  the  paramount  basis  of  state  organization 
strongly  asserted  itself.  The  great  political  upheaval 
consequent  upon  the  American  and  French  revolutions 


THE   THEORY   OF  THE   STATE  19 

led  to  an  intense  national  movement  in  most  parts  of 
Europe.  Under  its  influence  modern  Italy  has  been 
converted  (1815-1870)  into  a  national  state.  Germany- 
has  assumed  a  definite  national  form  in  the  modern 
German  Empire  (1871),  whose  boundaries,  however, 
are  not  identical  with  those  occupied  by  the  German 
people.  In  other  countries  —  Hungary.  Ireland  —  the 
same  movement  has  been  seen  in  abortive  form,  while 
the  modern  aspirations  of  Pan -Slavism,  Pan -Ger- 
manism, and  "  unredeemed "  Italy  foreshadow  the 
part  that  nationality  is  to  play  in  the  organization 
of  the  states  of  the  future.  Common  nationality  is 
therefore,  though  not  an  actual  requisite  in  the  com- 
position of  the  state  as  it  now  exists,  a  potent  factor 
in  its  formation. 

5.  The  State  and  a  Common  Faith.  At  vari- 
ous periods  in  the  world's  history  we  find  the  idea 
that  the  existence  of  a  common  religious  faith  among 
the  members  of  the  state  is  essential  to  its  exist- 
ence. Such  was  the  dominant  element  in  the  com- 
position of  the  ancient  Jewish  theocracy.  In  the 
period  following  the  reformation  in  Europe  heretical 
belief  was  considered  by  both  Protestant  and  Catho- 
lic monarchies  an  offense  against  the  state  and  was 
punished  as  such.  In  the  theocratic  Puritan  colonies  in 
America  (Massachusetts  and  New  Haven)  only  the 
members  of  the  church  were  at  first  admitted  to  the 
exercise  of  political  rights.  With  the  growth  of  the 
doctrine  of  religious  toleration  such  a  view  of  the  state 
has  passed  away.  The  civil  authority  and  the  civil 
bond  among  the  citizens  is  dissociated  from  their  reli- 
gion. In  many  countries,  however,  established  churches 


20  THE   NATURE   OF  THE   STATE 

supported  by  the    state   remain  as  historic    survival  j 
of  the  earlier  point  of  view. 

6.  The  Ideal  State.  In  all  of  the  foregoing  an- 
alysis we  have  treated  of  the  state  as  it  actually  ex- 
ists, not  the  state  as  it  might  be  if  viewed  in  its  perfect 
form.  This  is  the  distinction  made  by  the  German 
writers  ^  between  the  conception  and  the  idea  of  the 
state.  The  conception  of  the  state  at  any  particular 
historical  period  is  found  in  the  common  attributes  of 
the  states  actually  existent.  The  idea,  on  the  other 
hand,  is  the  ideal  of  perfect  form  of  which  any  actual 
state  is  only  an  approximate  realization.  This  ideal  has 
varied  from  age  to  age.  To  the  Greeks  the  ideal  was 
to  be  sought  in  the  perfected  form  of  the  city  state.  In 
our  own  day  the  national  state  has  served  as  the  em- 
bodiment of  perfect  political  organization.  But  a  wider 
ideal  is  conceivable  in  the  form  of  the  world  state  or 
state  universal.  The  realization  of  such  a  political  or- 
ganization, as  has  been  said,  was  long  the  haunting  ideal 
of  European  policy.  We  see  it  reflected  in  the  claims 
of  the  Roman  emperor,  in  the  less  substantial  claims  of 
the  Eastern  emperor,  at -Constantinople  after  the  fall 
of  Rome,  in  the  resuscitation  of  the  empire  by  Charles 
the  Great  (a.  d.  800),  and  in  the  vague  sovereignty 
of  the  Holy  Roman  Emperor  from  that  date  until  the 
abolition  of  the  titular  dignity  (180G)  through  the 
power  of  Napoleon.  The  same  ideal  hovers  before  us 
as  offering  the  goal  of  the  political  organization  of  the 
future.  The  development  of  international  relations  that 
could  lead  to  such  an  end  will  be  discussed  in  a  later 
chapter. 

^  See  J.  K.  Bluntschli,  Theory  of  the  State,  bk.  i,  chap.  i. 


THE  THEORY  OF  THE  STATE  21 

READINGS  SUGGESTED 
Burgess,  J.  W.,  Political  Science  and  Constitutional  Law  (1898), 

vol.  i,  bk.  i,  chap,  i,  ii,  iii,  iv. 
Bluntschli,  J.  K.,  The  Theory  of  the  State   (translation  of  6th 

edition,  1885),  Introd.,  chap,  i,  ii,  iii,  and  bk.  i,  chap.  i. 
Sidgwick,  H.,  Elements  of  Politics  (2d  edition,  1897),  chap.  i. 

FURTHER  AUTHORITIES 
Jellinek,  G.,  Das  Recht  des  Modernen  Staates,  vol.  i  (1900). 
Willoughby,  W.  W.,  The  Nature  of  the  State  (1896). 
Seeley,  Sir  J.  R.,  Introduction  to  Political  Science  (1896). 
M'Kechnie,  W.  S.,  The  State  and  the  Individual  (1896). 
Pollock,  Sir  Frederick,  A  First  Book  of  Jurisprudence  (1896). 
Holland,  T.  E.,  Elements  of  Jurisprudence  (1888). 
Bosanquet,  B.,  The  Philosophical  Theory  of  the  State  (1899). 
Wilson,  W.,  The  State  (revised  edition,  1900). 
Woolsey,  T.,  Political  Science,  vol.  i  (1878). 


CHAPTER  II 

ORIGIN   OF  THE   STATE;   FALLACIOUS   THEORIES 

1.  Theory  of  the  Social  Contract.  —  2.  Application  made  of  the  Theory 
by  Hobbes,  Locke,  and  Rousseau.  —  3.  Criticism  of  the  Theory.  — 
4.  The  Theory  of  Divine  Origin.  —  5.  The  Theory  of  Force. 

1.  Theory  of  the  Social  Contract.  After  a  pre- 
liminary investigation  of  the  projier  province  of  po- 
litical science,  the  topic  which  of  necessity  takes  the 
first  place  in  our  inquiry  is  that  of  the  origin  of  the 
state.  How  has  it  come  about  that  men  are  every- 
where found  living  under  some  form  of  authoritative 
control?  What  is  the  origin  of  government  and  law? 
Speculation  as  to  the  beginnings  of  government  is  not 
merely  a  matter  of  historical  curiosity,  for  it  is  inti- 
mately associated  with  the  more  important  question 
of  the  justification  of  government,  —  the  right  of  the 
state  to  be.  The  present  subject  thus  brings  before 
us  both  a  historical  and  an  ethical  enquiry,  — the  in- 
vestigation of  the  facts  as  to  the  actual  beginnings 
of  political  forms  and  the  discussion  of  the  bearing 
of  these  facts  on  the  question  of  the  rightfulness  or 
wrongness  of  the  existence  of  government. 

To  examine  and  reject  a  fallacious  hypothesis  is 
often  a  means  of  arriving  at  the  truth.  In  the  jDresent 
instance  a  presentation  of  some  of  the  mistaken  theories 
proposed  as  to  the  origin  of  the  state  may  aid  us  in 
moving  towards  a  correct  one.  The  different  opinions 
which  we  shall   briefly  review  have  had  such   great 


ORIGIN   OF  THE   STATE  23 

influence  in  the  formation  of  existing  political  insti- 
tutions that  a  proper  understanding  of  them  is  neces- 
sary in  order  to  appreciate  the  forces  operative  in  the 
growth  and  structure  of  modern  governments.  The 
purpose  of  the  ensuing  discussion  is  not,  therefore,  the 
merely  sophistical  task  of  demolishing  hypotheses  of 
straw.  The  rejection  of  what  is  false  in  the  specula- 
tive theories  of  the  past  will  aid  in  establishing  more 
valid  conclusions  on  the  residual  basis  of  what  is  true. 
Foremost  in  historical  importance  of  all  the  different 
views  concerning  the  origin  of  the  state,  is  the  theory 
of  the  social  contract.  As  old  as  jjolitical  speculation 
itself,  and  preeminent  in  its  influence,  it  stands  written 
large  ujion  the  history  of  human  thought.  Postponing 
for  the  moment  the  treatment  of  the  beginnings  and 
growth  of  the  theory,  let  us  first  examine  in  broad 
outline  the  general  content  of  the  doctrine  of  the  social 
contract.  It  professes  to  offer  an  explanation  of  the 
origin  and  justification  of  government.  To  do  this  it 
starts  from  the  fundamental  assumption  that  the  past 
history  of  mankind  may  be  divided  into  two  periods, 
the  first  of  which  is  antecedent  to  the  institution  of 
government,  the  latter  subsequent  to  it.  During  the 
first  of  these  periods,  man  is  found  in  the  "state  of 
nature,"  uncontrolled  by  any  laws  of  human  imposition, 
and  subject  only  to  such  regulations  as  are  supposed 
to  be  prescribed  to  him  by  nature  itself.  This  code  of 
regulations,  or  rather,  since  it  is  nowhere  written  down, 
the  spirit  by  which  such  a  code  might  be  presumed  to 
be  inspired,  is  spoken  of  as  the  law  of  nature,  or  nat- 
ural law.  This  primitive  stage  of  natural  society  man 
is  presently  compelled  to  desert.    Whether  it  be  that 


24  THE   NATURE   OF  THE   STATE 

this  state  is  too  idyllic  to  last,  or  whether  it  becomes 
in  the  course  of  time  and  by  reason  of  mutual  rapacity 
too  inconvenient  to  be  tolerated,  is  a  point  of  dispute 
among  the  exponents  of  the  theory  themselves.  In 
either  case  man  is  led  to  substitute  for  it  a  vinion  with 
his  fellowmen  in  which,  abandoning  the  isolation  of 
the  "natural"  individual,  all  are  joined  into  one  civil 
society  or  body  politic.  Each  now  stands  in  a  vastly 
different  relation  to  his  fellow-men.  Submitting  him- 
self to  the  joint  control  of  all,  he  receives  in  return  the 
benefit  of  the  joint  interest  of  all  in  his  protection. 
To  safeguard  the  security  of  all  members  of  the  body 
politic  (or  state),  a  code  of  law  is  enforced  by  all 
against  the  possible  rapacity  of  each.  Thus  while  each 
loses  the  "  natural  liberty  "  that  he  enjoyed  in  the  ante- 
cedent state  of  nature,  he  gains  in  return  the  security 
to  which  he  is  naturally  entitled,  and  which  is  now 
guaranteed  to  him  by  the  covenant  of  all  his  fellows. 
Human  law  is  substituted  for  a  natural  law,  and  the 
individual  in  submitting  to  social  duties  finds  himself 
clothed  with  social  rights.  The  process,  or  at  any  rate 
the  result  of  it,  has  very  much  the  appearance  of  a 
contract  or  bargain  dictated  by  the  individual's  own 
interest,  an  exchange  of  obligations  in  return  for  privi- 
leges. Whether  the  bargain  is  to  be  looked  upon  as 
one  that  actually  happened  at  a  given  time  and  place 
for  each  politically  constituted  society,  or  whether  it 
merely  expresses  the  result  or  outcome  of  a  more  grad- 
ual social  process,  is  a  matter  that  has  been  persistently 
left  in  a  half-light.  We  cannot  therefore  make  any 
general  statement  as  to  whether  those  who  have  de- 
fended the  idea  of  the  social  contract  have  viewed  it  as 


ORIGIN   OF  THE   STATE  25 

a  historical  fact,  or  only  as  an  interpretation  of  the 
nature  of  the  social  bond. 

Such  is  in  general  the  doctrine  of  the  social  con- 
tract. A  glance  at  the  growth  and  history  of  the  doc- 
trine itself  may  serve  to  bring  out  more  saliently  the 
nature  of  the  argument  involved.  The  origin  of  the 
theory  is  to  be  found  in  the  philosophy  of  the  Greeks. 
It  is  associated  more  particularly  with  the  speculative 
thought  of  the  period  during  which  the  Greek  city 
state  —  the  organized  form  under  which  Athens  and 
Sparta  reached  their  greatest  development  —  was  fall- 
ing into  decadence.  In  the  writings  of  Plato  and  Aris- 
totle we  find  but  scant  sanction  for  it.  The  political 
thought  of  both  of  them  was  inspired  by  the  ideal  of 
the  city  state,  whose  importance  was  to  them  greater 
than,  and  antecedent  to,  that  of  the  individual  citizen. 
The  latter,  indeed,  only  existed  in  and  through  the 
state.  The  social  bond  with  his  fellows  was  an  essen- 
'tial  part  of  man's  nature.  "Man,"  runs  the  well- 
known  Aristotelian  dogma,  "  is  a  political  animal." 
Society,  therefore,  being  the  primary  consideration, 
and  the  individual  existence  being  possible  only  by 
means  of  it,  the  eoncej^tion  of  an  individual  dealing 
in  obligations  and  privileges,  as  a  subject  of  contract 
with  society  at  large,  was  altogether  foreign  to  the  Pla- 
tonic and  Aristotelian  system. 

With  the  Greeks  of  the  fourth  and  succeeding  cen- 
turies, however,  the  political  environment  had  alto- 
gether changed.  The  subversion  of  the  city  state  by 
the  Macedonian  and  Roman  conquests  led  the  Greek 
philosophers  to  turn  aside  from  political  speculation, 
and  to  look  upon  the  political  aspect  of  the  individual 


20  THE   NATURE   OF  THE   STATE 

as  merely  one  of  the  accidents  of  bis  being.  In  tbe 
writings  of  tbe  Eisicurean  scbool  we  find  tbe  idea  tbat 
laws  and  duties  imposed  on  tbe  individual  by  any  gov- 
ernment, wbetber  foreign  or  autonomous,  are  tilings 
wbicb  he  accepts  for  his  own  well-being,  entering  thus 
into  a  kind  of  compact  or  understanding  with  the  jjow- 
ers  that  be.  On  this  foundation  grew  up  the  theory  of 
the  social  contract.  The  system  of  the  Roman  law,  one 
of  whose  greatest  contributions  to  institutional  devel- 
opment has  been  to  bring  into  a  clear  light  the  con- 
ception of  obligation  by  contract,  supjilied  a  further 
material  with  which  to  construct  the  completed  theory.* 
Christianity,  indeed,  inculcating  in  its  early  teachings 
the  doctrine  that  all  civil  society  had  been  the  outcome 
of  human  sin,  and  that  it  was  the  duty  of  the  Christian 
to  submit  to  the  rule  of  temporal  powers  as  a  part  of 
his  abnegation  of  self,  seemed  at  first  to  run  counter 
to  the  supposedly  equitable  bargain  of  a  social  con- 
tract. Nevertheless  in  the  polemics  of  the  middle  ages,  • 
during  which  the  rival  claims  of  the  empire  and  the 
papacy  supplied  the  basis  of  political  controversy,  a 
sort  of  meeting-point  appears  between  the  doctrine  of 
a  social  contract  and  the  early  Christian  conception  of 
the  nature  of  civil  society.  The  advocates  of  the  papal 
claim  held  that  kings  and  princes  in  general,  and  hence 
the  emperor  among  them,  held  their  offices  (under 
God's  sanction)  by  reason  of  a  covenant  with  the  peo- 
ple, even  as  the  elders  of  Israel  covenanted  with  King 
David.^  This  view,  connected  presently  with  the  earlier 
Greek  philosophy,  gave  rise  to  a  special  form  of  con- 

*  See   in  this  connection  David  G.  Ritchie,  Darwin  and  Hegel,  with 
Other  Philosophical  Studies.    (1893.)  2  2  Samuel,  v.  3. 


ORIGIN   OF  THE   STATE  27 

tract  theory  in  the  idea  of  a  compact  made  by  all  the 
people  with  one  person,  a  contract  between  a  king  and 
his  subjects.  To  this  special  form  of  the  general  doc- 
trine the  name  of  governmental  compact  ^  has  often 
been  given. 

2.  Application  made  of  the  Theory  by  Hobbes, 
Locke,  and  Rousseau.  It  was  in  the  seventeenth 
and  eighteenth  centuries,  in  consequence  of  the  reli- 
gious and  civil  upheavals  by  which  the  political  in- 
stitutions of  Europe  were  moulded  anew,  that  the 
theory  of  contract  obtained  its  greatest  prominence. 
Hobbes  and  Locke  in  England  and  Jean  Jacques 
Rousseau  in  France  became  its  chief  exponents.  A 
review  of  the  contract  theory  as  laid  down  by  each 
will  serve  to  show  it  in  its  completed  form.  Thomas 
Hobbes,  sometime  tutor  to  Charles  II,  and  prominent 
among  the  writers  of  the  seventeenth  century  for  his 
works  on  moral  and  political  philosophy,  offers  in  his 
"  Leviathan  "  (1651)  a  striking  exposition  of  the  con- 
tract theory.  The  foundation  of  his  theory  lies  in  his 
estimate  of  man's  essential  nature.  Man,  according  to 
Hobbes,  is  an  altogether  selfish  and  self-seeking  ani- 
mal. The  sole  motive  for  his  actions  proves  on  analysis 
to  be  the  wish  to  satisfy  his  own  appetites  and  desires ; 
even  such  a  quality  as  benevolence  is  seen  on  examina- 
tion to  result  from  man's  "  love  of  power  and  delight 
in  the  exercise  of  it."  Compassion  is  only  "  grief  at 
the  calamities  of  others  from  the  imagination  that  the 
like  calamity  may  befall  ourselves."  Man  is  there- 
fore by  nature  anything  but  a  social  animal ;  indeed 
he  finds  "  nothing  but  grief   in  the  company  of  his 

1  See  W.  W.  WUloughby,  The  Nature  of  the  State  (1896),  ch.  iv. 


28  THE   NATURE   OF  THE   STATE 

fellows,"  all  being  equally  rapacious  and  self-seeking. 
The  state  of  nature  is  consequently  a  state  of  war,  the 
war  of  each  against  all ;  it  is  a  state  of  "  continual 
fear  and  danger  of  violent  death ;  and  the  life  of  man 
solitary,  poor,  nasty,  brutish,  and  short."  From  this 
condition  man  is  driven  by  evident  necessity  to  join 
himself  with  his  fellows  under  some  common  authority, 
universal  submission  to  any  form  of  control,  however 
despotic,  being  preferable  to  the  mutual  warfare  of  the 
state  of  nature.  In  the  contract  which  men  thus  make 
among  themselves  all  agree  to  submit  to  a  single  au- 
thority, which  Hobbes  interprets  to  be  that  of  a  king 
or  absolute  sovereign.  But  the  latter,  from  the  nature 
of  the  case,  though  benefited  by  the  contract,  is  not  a 
party  to  it.  Such  a  contract  thus  differs  from  the  gov- 
ernmental compact  referred  to  above  in  that  the  king, 
being  no  party  to  it,  cannot  break  it.  It  becomes  irre- 
vocably binding  on  all  the  community  as  a  perpetual 
social  bond.  In  this  way  the  theory  is  used  by  Hobbes 
as  a  defense  of  absolute  monarchy,  the  philosopher 
appearing  as  the  theoretical  apologist  of  the  Stuart 
despotism. 

Very  different  is  the  presentation  of  the  contract  by 
Hobbes's  illustrious  contemporary  John  Locke.  With 
the  latter  the  state  of  nature  is  not  one  of  universal 
war;  it  is,  however,  inconvenient  and  unsatisfactory. 
There  is  in  the  first  place  the  standing  "  want  of  an 
established,  settled,  known  law,  the  'law  of  nature' 
being  obscured  since  men  are  biased  by  their  interest 
as  well  as  ignorant  for  want  of  study  of  it."  Nor  is 
there  "  a  known  and  indifferent  judge,"  nor,  finally,  an 
active  power  to  punish  those  who  contravene  the  law 


ORIGIN   OF  THE   STATE  29 

of  nature.  For  these  reasons,  men  are  led  to  abandon 
the  "  freedom  "  of  the  state  of  nature,  and  submit  to 
the  restraint  of  civil  society.  In  the  contract  which 
they  make,  however,  the  monarch  to  whom  they  agree 
to  submit,  is  himself  a  party.  The  contract  as  presented 
by  Locke  does  not  precisely  correspond  to  the  govern- 
mental compact,  since  it  not  only  establishes  the  author- 
ity of  the  monarch,  but  also  joins  the  members  of  the 
community  by  mutual  covenant  into  a  body  politic.^ 
It  differs  on  the  other  hand  from  the  contract  of  Hobbes 
in  that  the  monarch  is  a  party  to  it,  and  holds  his 
office  only  by  virtue  of  his  compliance  with  the  terms 
of  the  contract.  Should  the  king  break  these,  the 
contract  is  dissolved.  In  this  form  the  theory  is  made 
the  basis  of  a  system  of  limited  monarchy,  and  Locke 
stands  as  the  apologist  of  the  English  revolution  of 
1688.  The  charge  of  having  endeavored  to  "  subvert 
the  original  contract  between  king  and  people,"  which 
was  the  indictment  of  the  Convention  Parliament 
against  King  James  II,  shows  the  basis  of  Locke's  later 
defense  of  the  revolution  which  was  embodied  in  his 
"  Treatises  on  Government  "  (1690). 

Strongly  contrasted  with  each  of  these  is  the  stand- 
point of  the  great  French  writer  of  the  eighteenth  cen- 
tury, Jean  Jacques  Rousseau.  Rousseau's  book,  the 
"  Contrat  Social"  (1762),  may  be  taken  as  the  exposi- 
tion of  the  theory  dominant  in  the  eighteenth  century. 
With  Rousseau  the  state  of  nature  appears  as  an  era 

^  The  late  Professor  Ritchie  claimed  that  the  customary  contrast 
between  Locke  and  Rousseau  is  erroneous,  the  essence  of  Locke's  so- 
cial contract  being  the  incorporation  of  society  and  not  the  appointment 
of  a  king.  See  essay  "  The  Social  Contract  Theory,"  Political  Science 
Quarterly,  1891. 


30  THE  NATURE   OF  THE   STATE 

of  almost  idyllic  felicity.^  The  simple  savage  endowed 
with  a  health  and  vigor  as  yet  unimpaired  by  the  ener- 
vating influences  of  civilization  suffices  easily  for  his 
own  restricted  felicity.  To  this  hypothetical  state  of 
nature  Rousseau  appeals  for  the  solution  of  the  prob- 
lems of  civilized  life  in  regard  to  education,  morals, 
etc.  As  the  numbers  of  the  race  increase,  this  primitive 
condition  becomes  no  longer  advantageous.  The  ob- 
stacles which  injure  man's  preservation  in  the  state  of 
nature  grow  more  powerful  than  the  forces  which  each 
individual  can  employ  to  maintain  himself  in  this  con- 
dition. Man  is  thus  driven  to  relinquish  his  "  natural 
liberty,"  that  rather  illusory  "  umlimited  right  to  every- 
thing he  is  able  to  obtain,"  and  by  a  union  with  his 
fellows  to  substitute  civil  for  natural  liberty.  To  do 
this  he  is  driven  to  find  a  "  form  of  association  which 
may  defend  and  protect  with  all  the  force  of  the  com- 
munity the  person  and  property  of  each  associate  and 
by  which  each,  being  united  to  all,  yet  only  obeys  him- 
self and  remains  as  free  as  before."  This  is  the  social 
contract,  a  covenant  of  each  with  all.  The  king  or 
monarch  (or  governing  body  of  any  kind)  is  not  a 
party  to  the  bargain,  nor  is  the  tenure  of  office  of  the 
ruler  or  rulers  one  of  the  terms  of  the  contract.  The 
king  is  merely  a  commissioned  officer  who  holds  his 
position  at  the  dictates  of  that  general  will  (volonte 
ffenerale)  which  emerges  as  the  sovereign  power  in 
consequence  of  the  contract.  Any  king  is  of  course 
deposable  if  the  general  will  demands  it.  With  Rous- 
seau the  doctrine  of  the  social  contract,  which  in  the 

1  Rousseau's  views  on  the  state  of  nature  are  found  in  detail  in  his 
Discours  stir  VIntgalitL 


ORIGIN   OF  THE   STATE  31 

hands  of  Hobbes  was  made  a  weapon  of  defense  for 
absolutism,  and  with  Locke  a  shield  for  constitutional 
limited  monarchy,  becomes  the  basis  of  popular  sover- 
eignty. 

3.  Criticism  of  the  Theory.  From  the  exposition 
of  the  theory,  let  us  turn  to  the  question  of  its  criti- 
cism. Attacked  even  in  the  eighteenth  century  by 
David  Hume,^  it  has  undergone  a  series  of  assaults  at 
the  hands  of  the  publicists  of  the  nineteenth  century,  as 
the  result  of  which  it  may  be  now  looked  upon  as  ex- 
ploded. Jeremy  Bentham  says  of  it,  "  I  bid  adieu  to  the 
original  contract  and  I  left  it  to  those  to  amuse  them- 
selves with  this  rattle  who  could  think  they  needed  it." 
J.  K.  Bluntschli,  one  of  the  most  distinguished  German 
writers  on  political  science  in  the  nineteenth  century, 
pronounces  the  theory  not  only  unhistorical  and  illogi- 
cal, but  even  "  in  the  highest  degree  dangerous,  since 
it  makes  the  State  and  its  institutions  the  product  of 
individual  caprice."  ^ 

Of  the  arguments  directed  against  the  social  contract, 
the  most  evident  and  the  most  unanswerable  is  that  the 
theory  has  no  foundation  in  history.  There  is  no  re- 
corded instance  of  a  group  of  savages,  previously  with- 
out any  political  organization  or  political  ideas,  deliber- 
ately meeting  together  to  supply  the  defect.  Nor  is  it 
rational  to  suppose  that  any  such  deliberate  first  crea- 
tion of  the  state  could  have  happened  ;  for  this  presup- 
poses in  the  minds  of  its  founders  the  conception  of 
social  organization  before  any  such  phenomenon  had 
existed.    They  must  have  known  what  a  government 

1  Hume,  Philosophical  Worlcs  (Edinburgh,  1854),  vol.  iii,   essay  xii. 

2  Bluntschli,   Theory  of  the  State,  bk.  iv,  chap.  ix. 


32  THE  NATURE  OF  THE  STATE 

was  before  tliey  could  make  one.  As  against  this  it 
is  urged  that  history  does  furnish  us  instances  of  what 
may  be  termed  the  formation  of  a  social  contract,  not 
indeed  among  men  hitherto  ignorant  of  government, 
but  among  groups  of  people  separated  from  the  state 
under  which  they  had  lived,  and  desirous  of  forming  a 
new  organization  by  deliberate  action.  Most  famous  of 
these  instances  is  the  case  of  the  Puritan  emigrants  of 
the  Mayflower.  The  familiar  document  drawn  up  and 
signed  by  them  while  still  on  board  ship  runs,  "  We  .  .  . 
do,  by  these  presents,  solemnly  and  mutually  in  the 
presence  of  God  and  one  another,  covenant  and  com- 
bine ourselves  together  into  a  civil  body  politic,  for  our 
better  ordering  and  preservation."  "  When  Carlyle 
objects,"  says  Professor  Kitchie,  "  that  Jean  Jacques 
could  not  fix  the  date  of  the  social  contract,  it  would  at 
least  be  a  plausible  retort  to  say  that  the  date  was  the 
1 1th  of  November,  1620."  ^  Further  examples  are  found 
during  the  same  era  of  American  history  in  the  Provi- 
dence agreement  (1636)  and  the  plantation  covenant 
of  New  Haven  (1638).  It  has  even  been  urged  that 
the  written  constitutions  of  the  United  States  and  its 
component  commonwealths  are  historical  instances  of 
social  contracts.  But  in  all  of  these  cases  we  have  at 
best  not  the  institution  of  a  state  among  a  people 
hitherto  devoid  of  political  organization,  but  the  estab- 
lishment of  a  particular  government  by  persons  already 
accustomed  to  the  rights  and  duties  of  civil  society.  If 
the  social-contract  theory  merely  meant  that  in  some 
cases  particular  governments  are  established  by  joint 
and  general  action,  it  would  be  hard  to  contradict  it. 
^  Ritchie,  Political  Science  Quarterly,  1891. 


ORIGIN   OF  THE   STATE  33 

It  is,  however,  possible  to  abandon  the  doctrine  of  the 
social  contract  as  representing  a  historical  occurrence, 
and  yet  to  adhere  to  it  as  expressing  the  proper  inter- 
pretation of  the  relations  between  the  individual  and 
the  state.  Viewed  in  this  light  it  is  no  longer  a  histori- 
cal but  an  analytical  conception.  It  proposes  as  the 
justification  of  the  state  a  voluntary  exchange  of  services 
between  the  individual  and  the  political  community. 
The  individual  renders  obedience  and  receives  protec- 
tion. It  is  in  this  form  that  we  find  the  contract  doctrine 
maintained  by  many  political  philosophers  of  the  early 
nineteenth  century.  Such  for  instance  is  the  standpoint 
of  Kant.^  The  contract,  he  says,  is  "  not  to  be  assumed 
as  a  historical  fact,  for  as  such  it  is  not  possible,  but  it 
is  a  rational  idea  which  has  its  practical  reality  in  that 
the  legislator  may  so  order  his  laws  as  if  they  were  the 
outcome  of  a  social  contract.  The  latter  becomes  in 
consequence  '  the  criterion  of  the  equity  of  every  public 
law.' "  2  Yet  even  as  an  ideal  of  social  relations,  the 
contract  doctrine  has  been  assailed,  one  may  say  almost 
overwhelmed,  with  hostile  criticism.  The  individual, 
it  is  argued,  is  joined  to  the  state  not  by  a  voluntary 
conjunction  but  by  an  indissolvable  bond.    The  relation 

^  See  Kant's  treatise  On  the  Common  Saying,  etc.  A  good  exposition 
of  Kant's  views  in  regard  to  the  nature  of  the  state  is  given  by  Pro- 
fessor Paulsen,  Immanuel  Kant,  New  York,  1902,  pp.  343-361. 

^  It  is  in  this  modified  form  that  the  doctrine  of  the  social  contract 
becomes  the  basis  of  the  benefit  theory  of  taxation  ;  the  individual  is 
hereby  called  upon  to  contribute  to  the  public  needs  not  in  accordance 
with  his  "  faculty  "  or  ability  to  contribute,  but  in  accordance  with  the 
amount  of  benefit  or  protection  that  he  receives.  In  practice  either 
theory  would  tax  the  rich  more  heavily  than  the  poor ;  but  the  fun- 
damental conceptions  of  the  relation  of  the  individual  and  the  state 
implied  in  the  two  theories  are  essentially  opposed. 


34  THE   NATURE  OF  THE   STATE 

is  a  compulsory  one.  Each  of  us  is  born  into  the  state  ; 
we  are  part  of  the  state  and  the  state  is  part  of  us. 
The  state  is  not  a  mutual  assui^ance  society,  member- 
ship in  which  is  a  matter  that  the  citizen  may  accept 
or  reject.  Nor  is  the  true  measure  of  our  social  duties 
to  be  found  in  the  extent  of  benefit  that  we  receive 
from  society.  Our  common  experience  of  the  nature 
of  the  state  indicates  much  that  conflicts  with  the  nar- 
row view  suggested  by  the  quid  jpro  quo  of  a  contract 
relation.  Patriotism  —  the  sacrifice  of  the  individual's 
interests  to  the  claims  of  the  community  —  we  account 
one  of  the  highest  of  virtues.  We  look  to  the  state  as 
the  especial  guardian  of  the  poor  and  the  helpless.  We 
call  upon  it  to  act  not  for  the  present  generation  alone, 
but  for  the  welfare  of  those  which  are  to  come.  The 
state,  in  fine,  stands  in  its  .ideal  aspect  for  the  collec- 
tive moral  effort  of  the  whole  community.  The  line  of 
thought  here  suggested  finds  its  extreme  expression  in 
what  is  called  the  "  organic  theory  of  the  state,"  a  doc- 
trine that  will  be  examined  in  a  later  chapter. 

4.  The  Theory  of  Divine  Origin.  The  import- 
ance of  the  social-contract  theory  has  entitled  it  to  a 
somewhat  elaborate  discussion.  Of  the  other  fallacious 
doctrines  in  question,  the  two  principal  ones,  the  the- 
ory of  the  divine  origin  of  the  state  and  the  theory  of 
force,  may  be  more  briefly  mentioned.  The  theory  of  the 
divine  origin,  known  in  familiar  form  as  "  the  divine 
right  of  kings,"  may  now  be  regarded  as  entirely 
extinct  in  political  theory.  It  belongs  especially  to 
the  period  of  the  sixteenth  and  seventeenth  centuries. 
Originating  after  the  great  mcdiieval  controversy  of 
the  Pajjacy  and  Empire  had  subsided,  it  represents  the 


ORIGIN   OF  THE   STATE  35 

resistance  offered  by  the  constituted  monarchical  gov- 
ernments to  the  growing  ideas  of  popular  sovereignty. 
Its  essential  meaning  is  that  each  and  every  existing 
state  represents  an  institution  of  deliberate  divine 
creation.  Under  this  theory  the  government,  or  one 
may  say  the  monarch,  since  the  doctrine  was  directed 
towards  the  defense  of  the  monarchical  system,  repre- 
sents a  direct  divine  agency  against  whom  no  supposed 
principle  of  individual  rights  can  be  valid.  In  a  cer- 
tain sense  it  is  of  course  very  genei-ally  held  that  all 
human  institutions  represent  the  controlling  power  of 
the  Deity.  But  the  theory  of  divine  right  goes  much 
farther  than  this.  It  assumes  the  Deity  to  have  vested 
political  power  in  a  special  way,  and  by  special  inter- 
vention, and  to  have  seen  fit  to  deny  political  suprem- 
acy to  the  mass  of  the  community.  Such  works  as 
the  "  Patriarca "  of  Sir  Robert  Filmer,  a  parasitic 
apologist  of  the  later  Stuarts,  reflect  the  theory  in  its 
extreme  form,  the  paternal  power  vested  at  the  crea- 
tion in  Adam  being  here  supposed  to  pass  by  descent 
to  the  kings  and  princes  of  Europe.  The  theory  as 
such  needs  no  longer  a  serious  refutation.  It  has,  how- 
ever, been  pointed  out  by  several  critics  of  this  doctrine 
that  it  has  left  deep  traces  in  the  underlying  political 
thought  of  European  nations.  The  idea  of  kingship  as 
having  a  peculiar  divine  sanction  —  the  "  divinity  that 
doth  hedge  a  king  "  — is  by  no  means  an  extinct  ele- 
ment in  the  thought  of  many  people  both  in  Great 
Britain  and  continental  Europe.^ 

5.  The  Theory  of  Force.    Finally,  we  may  men- 

^  See  in  this  connection  Walter  Bagehot,  The  English  Constitution, 
oh.  iii. 


36  THE  NATURE  OF  THE  STATE 

tion  among  the  erroneous  doctrines  in  explanation  of 
the  origin  and  meaning  of  the  state  the  theory  of 
force.  Here,  again,  the  same  theory  appears  both  as  a 
historical  interpretation  of  the  rise  of  the  state  and  as  a 
rational  justification  of  its  being.  Historically  it  means 
that  government  is  the  outcome  of  human  aggression, 
that  the  beginnings  of  the  state  are  to  be  sought  in  the 
capture  and  enslavement  of  man  by  man,  in  the  con- 
quest and  subjugation  of  the  feebler  tribes,  and,  gener- 
ally speaking,  in  the  self-seeking  domination  acquired 
by  superior  physical  force.  The  progressive  growth 
from  tribe  to  kingdom,  and  from  kingdom  to  empire,  is 
but  a  continuation  of  the  same  process.  Such  a  point 
of  view  is  frequent  with  the  fathers  of  the  church  and 
the  theologians  of  the  middle  ages,  by  whom  the  ori- 
gins of  earthly  sovereignty  are  decried  in  order  that  its 
subordination  to  the  supremacy  of  the  spiritual  power 
may  be  the  more  evident.  Gregory  VII  wrote  (a.  D. 
1080),  "  Which  of  us  is  ignorant  that  kings  and  lords 
have  had  their  origin  in  those  who,  ignorant  of  God, 
by  arrogance,  rapine,  perfidy,  slaughter,  by  every  crime 
with  the  devil  agitating  as  the  prince  of  the  world, 
have  contrived  to  rule  over  their  fellow  men  with  blind 
cupidity  and  intolerable  presumption."  ^ 

In  modern  times  we  see  much  the  same  view  ad- 
vanced for  a  very  different  purpose  in  the  earlier 
political  writings  of  Herbert  Spencer.^  "  Government," 
he  says,  "  is  the  offspring  of  evil,  bearing  about  it  the 
marks  of  its  parentage."    With  the  churchmen  the  tem- 

*  Otto  Gierke,  Political  Theories  of  the  Middle  Age,  translated  by 
Professor  Maitland  (1900). 
2  See  Social  Statics  (1809). 


ORIGIN   OF  THE   STATE  37 

poral  power  was  defamed  for  the  benefit  of  the  spiritual 
authorities ;  with  Spencer  and  the  still  more  extreme 
writers  of  the  "  anarchistic "  school,  the  maintenance 
of  the  rights  of  the  individual  man  is  the  object  pur- 
sued. We  find  the  theory  of  force  elaborated  in  detail 
by  Marx,  Engels,  and  the  writers  of  the  German  social- 
istic group.  Here  the  doctrine  assumes  a  slightly  dif- 
ferent form.  The  growth  of  the  state  is  to  be  attrib- 
uted to  the  process  of  aggressive  exploitation,  by  means 
of  which  a  part  of  the  community  has  succeeded  in  de- 
frauding their  fellows  of  the  just  reward  of  their  labor. 
Existing  governments  represent  merely  the  coercive 
organization  which  serves  to  hold  the  workers  in  bond- 
age.^ The  socialist  writers  have  no  fault  to  find  with 
the  abstract  existence  of  a  state  or  coercive  authority. 
Their  objection  is  directed  against  the  particular  form 
of  the  present  state,  which  they  ascribe  to  its  iniqui- 
tous historical  origin.  As  against  the  theory  of  force  in 
general  it  can  with  propriety  be  advanced  that  it  errs 
in  magnifying  what  has  been  only  one  factor  in  the  evo- 
lution of  society,  into  the  sole  controlling  force.  That 
government  has  in  part  been  founded  on  aggression  no 
one  will  readily  deny.  But  as  we  shall  presently  see, 
its  institution  has  owed  much  to  forces  of  an  entirely 
different  character.  Even  a  "  population  of  devils," 
Kant  has  said,  "  would  find  it  to  their  advantage  to 
establish  a  coercive  state  by  general  consent." 

The  force  theory  has  also  played  some  part  in  politi- 
cal thought,  not  as  a  historical  account  of  the  rise  of 
the  state,  but  as  a  means  of  its  justification.    Stated  in 

^  The  historical  process  of  dispossession  is  outlined  in  the  Manifesto 
of  the  Communist  Party,  written  by  Marx  and  Engels  in  1848. 


38  THE   NATURE   OF   THE   STATE 

its  crudest  form,  such  a  doctrine  is  equivalent  to  the 
proposition  that  might  is  right.  "  The  individual," 
writes  Jelliuek,  in  elucidation  of  this  point  of  view, 
"must  submit  himself  to  it  since  he  perceives  it  to 
be  an  unavoidable  force  (^Naturgewalf),  "  Bluntschli 
even  maintains  that  the  doctrine  has  "  a  residuum  of 
truth,  since  it  makes  jDrominent  one  element  which  is 
indispensable  to  the  state,  namely  force,  and  has  a  cer- 
tain justification  as  against  the  opposed  theory  (that 
of  contract)  which  bases  the  state  upon  the  arbitrary 
will  of  individuals,  and  leads  logically  to  political  im- 
potence." ^  But  in  plain  matter  of  fact,  and  apart  from 
the  refinements  of  abstraction,  the  proposition  seems 
hopelessly  illogical.  As  was  long  ago  pointed  out  by 
Rousseau,  the  right  that  is  conferred  by  might  can 
reasonably  be  said  to  last  only  as'  long  as  the  might 
which  confers  it.  Submission  to  the  state  would  there- 
fore only  be  warranted  as  long  as  one  was  vinable  to 
do  anything  else  than  submit.  The  amount  of  justifica- 
tion involved  in  this  is  less  than  nothing. 

The  theory  of  force,  as  a  defense  of  the  governmental 
authority,  assumes  quite  a  different  aspect  at  the  hands 
of  Ludwig  von  Haller.  Writing  at  a  time  when  the 
great  wars  of  the  llevolutionary  and  Napoleonic  era  had 
overwhelmed  the  sanguine  outlook  of  the  eighteenth 
century  enlightenment  in  the  disillusion  of  a  devastated 
continent,  he  represents  a  natural  revulsion  from  the 
deification  of  popular  sovereignty  towards  the  princi- 
ples of  monarchical  authority.  With  Haller  govern- 
ment is  based  upon  "  the  natural  law  that  the  stronger 
rules."    But  the  principle  involved  is  one  of  benevo- 

1  Theory  of  the  State,  bk.  iv,  chap.  viii. 


ORIGIN   OF  THE   STATE  39 

lence,  not  of  repression.  The  fundamental  bond  of 
human  relationship  and  social  cohesion  is  the  depend- 
ence of  the  weak  upon  the  strong.  Obedience  is  given 
on  the  one  hand,  protection  on  the  other.  We  see  this 
in  the  relation  of  parent  and  child,  husband  and  wife, 
master  and  servant.  This  is  the  true  relation  of  the 
prince  and  the  subject.  The  position  is  not  one  created 
by  a  voluntary  act ;  it  is  not  a  contract ;  it  is  a  part  of 
the  fundamental  order  of  the  universe.  "We  might  as 
well  say,"  Haller  contends,  "  that  there  is  a  contract 
between  a  man  and  the  sun,  that  he  will  allow  himself 
to  be  warmed  by  it."  This  universal  law  of  the  sub- 
mission of  the  weak  to  the  strong  is  thus  made  the 
basis  of  a  theory  of  absolute  monarchy  and  unlimited 
submission.  Though  clothed  in  a  benevolent  form  it 
amounts  to  the  assertion  that  sovereign  power  is  the 
disposable  property  of  the  prince.  As  such  it  needs  no 
refutation.^ 

READINGS  SUGGESTED 

Willoughby,  W.  W.,  Nature  of  the  State  (189G),  chaps,  iii,  iv, 

V,  vi. 
Burgess,  J.  W.,  Political  Science  and  Constitutional  Law  (1898), 

vol.  i,  bk.  ii,  chap.  ii. 
Rousseau,  J.  J.,  Social  Contract  (1762),  bk.  i,  chaps,  i-ix. 
Pollock,    Sir    Frederick,    History    of    the    Science    of    Politics 

(1900),  chap.  iii. 

FURTHER   AUTHORITIES 
Hooker,  R.,  Ecclesiastical  Polity  (1594). 
Locke,  John,  Treatises  on  Civil  Government  (1690). 

1  Von  Haller's  Restoration  of  Political  Science  appeared  in  six  vol- 
umes, 1816-1834.  The  substance  of  his  "patrimonial  theory  "  is  dis- 
cussed by  Paul  Janet,  Histoire  de  la  Science  Politique,  vol.  ii,  and  by 
C.  Merriam,  Theory  of  Sovereignty,  chap.  iv. 


40  THE  NATURE  OF  THE  STATE 

Hobbes,  T.,  Leviatban  (1651). 

Ritcbie,  D.  G.,  Darwin  and  Hegel  (1893). 

Hume,  D.,  Essays  (1741-1742). 

Grabam,  W.,  Englisb  Political  Pbilosopby  (1899)  (Hobbes,  Locke, 

Burke,  pp.  1-174). 
Lowell,  A.  L.,  Essays  on  Government  (No.  IV.),  1889. 


CHAPTER  III 

THE  TRUE  ORIGIN  OF  THE  STATE 

1.  The  Historical  or  Evolutionary  View  of  the  State.  —  2.  The  Patri- 
archal and  Matriarchal  Theories.  —  3.  Course  of  Development :  the 
Aristotelian  Cycle.  —  4.  Military  and  Economic  Factors.  —  5.  Some 
General  Features  of  Political  Evolution. 

1.  The  Historical  or  Evolutionary  View  of  the 
State.  The  fallacious  theories  presented  in  the  last 
chapter  may  be  considered  to  prepare  the  way  for  a 
more  correct  estimate  of  the  origin  of  the  state.  The 
view  held  by  the  best  modern  writers  may  be  described 
as  the  historical  or  evolutionary  theory  of  the  state. 
By  this  is  meant  that  the  institution  of  the  state  is  not 
to  be  referred  back  to  any  single  point  of  time ;  it  is 
not  the  outcome  of  any  single  movement  or  plan.  The 
state  is  not  an  invention  :  it  is  a  growth,  an  evolution, 
the  result  of  a  gradual  process  running  throughout 
all  the  known  history  of  man,  and  receding  into  the 
remote  and  unknown  past.  "  The  proposition  that  the 
State  is  a  product  of  history,"  says  Professor  Burgess, 
"  means  that  it  is  a  gradual  and  continuous  devel- 
opment of  human  society  out  of  a  grossly  imperfect 
beginning  through  crude  but  improving  forms  of  mani- 
festation towards  a  perfect  and  universal  organization 
of  mankind."  It  is  thus  altogether  erroneous  to  think 
of  man  as  having  in  the  course  of  his  evolution  attained 
to  a  full  physical  and  mental  development,  and  then 
looking  about  him  to  consider  the  advisability  of  in- 


42  THE   NATURE   OF  THE   STATE 

venting  a  government.  We  might  as  well  imagine  man, 
mentally  and  physically  complete,  deciding  that  the 
time  had  come  for  the  invention  of  language,  in  order 
to  satisfy  his  growing  need  of  communicating  with  his 
fellows.  Just  as  language  has  been  evolved  from  the 
uncouth  gibberings  of  animals,  so  has  government  had 
its  origins  in  remote  and  rudimentary  beginnings  in 
prehistoric  society.  Man's  capacity  for  associated  ac- 
tion and  social  relationships  of  all  kinds  has  proceeded 
by  a  gradual  development  parallel  with  that  of  his 
physical  and  intellectual  aptitudes. 

2.  The  Patriarchal  and  Matriarchal  Theories. 
This  general  idea  or  principle  of  a  gradual  and  pro- 
gressive evolution  seems  clear  enough.  Yet  if  we  at- 
temjDt  to  go  further  and  map  out  the  stages  of  man's 
social  development,  the  most  serious  difficulties  are 
encountered.  The  simplest  and  earliest  method  of  offer- 
ing a  historical  account  of  the  genesis  of  social  amal- 
gamation was  found  in  taking  the  family  to  represent 
the  primal  unit  of  social  history.  The  control  exercised 
by  a  father  over  his  children,  which  presently  expands 
into  the  control  of  a  patriarch  over  his  descendants, 
was  supposed  to  represent  the  origin  of  human  govern- 
ment. It  indicated  at  the  same  time  a  justification 
of  the  state  as  proceeding  from  the  purely  "  natural " 
institution  of  the  family.  First  a  household,  then  a 
patriarchal  family,  then  a  tribe  of  persons  of  kindred 
descent,  and  finally  a  nation,  —  so  runs  the  social  series 
erected  on  this  basis.  This  attempt  to  refer  the  insti- 
tution of  government  to  the  authority  of  an  original 
father  of  a  family  is  known  as  the  patriarchal  theory, 
it  has  sought  to  defend  itself  by  reference  partly  to 


THE   TRUE   ORIGIN   OF  THE   STATE  43 

historical  instances,  partly  to  current  facts.  We  find 
it  as  early  as  in  the  writings  of  Aristotle,  the  first  book 
of  whose  "  Politics"  contains  a  statement  of  the  theory. 
"  The  family,"  says  Aristotle,  "  arises  first ;  .  .  .  when 
several  families  are  united,  and  the  association  aims  at 
something  more  than  the  supply  of  daily  needs,  then 
comes  into  existence  the  village.  .  .  .  When  several 
villages  are  united  in  a  single  community  perfect  and 
large  enough  to  be  nearly  or  quite  self-sufficing,  the  state 
(ttoAis)  comes  into  existence."  Since  Aristotle's  time 
the  same  view  has  been  presented  by  a  variety  of 
writers  as  offering  a  valid  a'ccount  of  the  origins  of 
political  institutions.  The  case  of  such  communities 
as  the  nomadic  tribes  of  central  Asia  is  adduced  in 
proof  of  the  correctness  of  the  view. 

The  historical  researches  of  the  nineteenth  century, 
however,  have  rendered  it  impossible  to  accept  the 
patriarchal  theory  as  offering  a  universal  or  final  solu- 
tion of  the  problem  of  the  origin  of  government.  The 
critics  of  this  theory  have  conclusively  shown,  in  the 
first  place,  that  the  patriarchal  regime  has  not  every- 
where appeared  as  the  foundation  of  later  institutions, 
and,  in  the  second  place,  that  even  where  it  has  ap- 
peared, it  has  not  of  necessity  been  the  oldest  form  of 
social  regulation  which  may  be  traced  in  prehistoric 
times.  Such  has  been  the  substance  of  the  results 
reached  by  J.  F.  McLennan  and  others  who  have 
sought  to  substitute  a  rival  hypothesis  under  the  title 
of  the  matriarchal  theory.  By  this  is  implied  an  alto- 
gether different  social  arrangement  from  that  suggested 
by  the  supposition  of  a  primitive  family.  Previous  to 
the  patriarchal  or  family  group  men  are  found  living 


44  THE  NATURE  OF  THE  STATE 

in  "  hordes  "  or  "  packs,"  in  which  the  usual  relations 
of  husband  and  wife  do  not  exist.  Relationship,  in- 
stead of  being  traced  through  the  father,  is  traced  in 
such  a  primitive  society  altogether  through  females. 
Tlie  nature  of  this  relationship  may  be  understood  by 
referring  to  the  account  given  by  Mr.  Edward  Jenks 
in  his  recent  "  History  of  Politics."  ^  Mr.  Jenks  de- 
scribes as  typical  of  primitive  society  the  arrangement 
still  existent  among  the  natives  of  Australia  and  the 
Malay  Archipelago.  "  It  is  the  custom,"  he  says,  "  to 
speak  of  the  Australian  and  other  savages  as  living 
in  tribes ;  ...  it  would  really  be  better  to  call  it  the 
'  pack,'  for  it  more  resembles  a  hunting  than  a  social 
oroanization.  All  its  members  are  entitled  to  share  in 
the  proceeds  of  the  day's  chase,  and,  quite  naturally, 
they  camp  and  live  together  .  .  .  [but]  the  real  social 
unit  of  the  Australians  is  not  the  '  tribe '  but  the  totem 
group.  .  .  .  The  totem  group  is  primarily  a  body  of 
persons  distinguished  by  the  sign  of  some  natural  ob- 
ject such  as  an  animal  or  a  tree,  who  may  not  inter- 
marry with  one  another.  '  Snake  may  not  marry  Snake. 
Emu  may  not  marry  Emu.'  This  is  the  first  rule  of 
savage  social  organization.  .  .  .  The  other  side  of  the 
rule  is  equally  startling.  The  savage  may  not  marry 
within  his  totem,  but  he  must  marry  into  another  totem 
specially  fixed  for  him.  More  than  this,  he  not  only 
marries  into  the  specified  totem,  but  he  marries  the 
whole  of  the  women  of  that  totem  in  his  own  genera- 
tion. ...  Of  course  it  must  not  be  supposed  that  this 
condition  of  marital  community  really  exists  in  prac- 
tice. As  a  matter  of  fact  each  Australian  contents  him- 
1  E.  Jenks,  History  of  Politics  (1900). 


THE   TRUE   ORIGIN   OF  THE   STATE  45 

self  with  one  or  two  women  from  his  marriage  totem." 
Under  such  a  system,  "  as  far  as  there  is  any  recogni- 
tion of  blood  relationship  at  all  it  is  through  women 
and  not  through  men."  Several  writers  on  the  matri- 
archal theory  have  considered  that  in  this  primitive 
stage  of  society  not  only  is  descent  traced  through  the 
mother,  and  property  passed  in  the  female  line,  but  the 
social  group  is  ruled  by  the  women,  not  the  men.  Such 
a  condition  of  things  is  actually  found,  for  instance, 
among  the  Hovas  of  Madagascar.  But  as  a  hypothesis 
of  a  universal  social  arrangement  it  has  been  quite 
refuted. 

The  exponents  of  the  matriarchal  theory  —  under- 
stood here  in  the  narrower  sense  of  a  system  of  re- 
lationship and  not  of  female  rule  —  present  it  as  the 
universal  primitive  condition  of  mankind.  Out  of  it, 
they  tell  us,  the  patriarchal  system  has  emerged 
through  the  adoption  of  settled  pastoral  and  agricul- 
tural habits  in  place  of  the  purely  wandering  or  hunt- 
ing life  of  primitive  man.  That  such  a  system  of  tribal 
relationship  as  is  here  described  exists  in  some  savage 
communities  of  to-day,  and  has  often  existed  in  the  past, 
seems  beyond  a  doubt.  There  does  not,  however,  seem 
any  adequate  proof  for  regarding  it  as  the  universal 
and  necessary  beginning  of  society.  Indeed  social  his- 
tory does  not  seem  to  lend  itself  to  so  simple  a  formula 
of  successive  development.  No  single  form  of  the  prim- 
itive family  or  group  can  be  asserted.  Here  the  matri- 
archal relationship,  and  there  a  patriarchal  regime  is 
found  to  have  been  the  rule,  —  either  of  which  may 
perhaps  be  displaced  by  the  other.  Indeed  one  has  to 
admit  the  fact  that  there  is  no  such  thins;  as  a  "  be- 


46        THE  NATURE  OF  THE  STATE 

ginning  "  of  human  society.  All  that  can  be  asserted 
is  that  in  the  course  of  time  the  nionogamic  family 
tended  to  become  the  dominant  form,  though  even  until 
to-day  it  has  not  altogether  supplanted  other  forms  of 
organization.  This  does  not  say,  however,  that  paternal 
control  of  the  family  is  to  be  looked  on  as  the  one 
necessary  beginning  of  government  and  social  control. 
For  it  must  have  happened  in  many  instances  that 
social  authority  of  a  rudimentary  sort  existed  where  as 
yet  the  monogamic  family  was  unknown.^ 

3.  Course  of  Development:  the  Aristotelian 
Cycle.  The  earlier  stages  of  the  social  evolution  seem 
therefore  to  lend  themselves  but  poorly  to  any  scheme 
of  orderly  and  uniform  progression.  Much  the  same 
difficulty  meets  us  in  trying  to  reduce  the  successive 
stages  of  historical  development  to  any  general  plan. 
It  is  clear  that  between  the  rudimentary  form  of  social 
control  exercised  by  the  chief  of  a  primitive  tribe,  and 
the  complex  and  effective  organization  of  a  modern 
civilized  government,  a  vast  historical  evolution  is  ap- 
parent. But  to  reduce  the  stages  of  this  progression  to 
a  necessary  coordinated  sequence  appears  an  impossi- 
ble task.  The  same  goal  has  been  reached  by  different 
paths ;  not  all  political  communities  have  passed  through 
the  same  phases  of  development.  What  has  been  the 
result  of  an  internal  evolution  in  some  has  been  ef- 
fected  in  others  by  imitation  and  adaptation  of  what 

^  "  Of  all  these  endless  controversies  in  reference  to  relationship  and 
marriage,  what  seems  to  me  most  evident  is  that  the  primitive  family 
has  assumed  various  forms,  here  monogamic,  there  polygamic,  elsewhere 
polyandrie,  sometimes  exogamic,  sometimes  endogamic,  often  more 
authoritative,  sometimes  less  so  than  it  has  become  later.''  Q.  Tarda, 
Les  Tramformalions  du  Droit,  chap.  iii. 


THE  TRUE  ORIGIN  OF  THE  STATE  47 

already  existed  elsewhere.  Democratic  government  has 
been  attained  in  various  modern  states  by  quite  distinct 
historical  stages. 

Notwithstanding  these  considerations,  the  attempt  to 
reduce  political  progress  to  the  formula  of  a  prescribed 
course  of  development  has  often  been  made.  At  the 
very  outset  of  political  sjDecuIation  we  have  the  famous 
"cycle  theory"  of  Plato,  and  a  theory  of  progressive 
change  laid  down  by  Aristotle.  Plato  thought  that  the 
natural  life  of  a  state  must  move  through  a  definite 
course  of  political  changes.  Aristocracy,  the  rule  of  the 
best,  passed  into  timocracy, —  the  government  of  honor 
or  rule  of  the  military  class.  This  changed  to  oligarchy, 
then  to  mob  rule,  and  finally  to  tyranny.^  The  views 
of  Aristotle  will  be  considered  in  some  detail  in  a  later 
chapter.^  While  criticising  Plato's  opinions  and  point- 
ing out  that  successive  political  revolutions  do  not 
always  follow  the  same  order  of  development,  Aristotle 
nevertheless  considers  the  transition  from  monarchy  to 
oligarchy,  from  oligarchy  to  tyranny,  and  from  tyranny 
to  democracy  to  have  been  the  normal  or  usual  nature 
of  Hellenic  political  change.^  However  applicable  this 
may  have  been  to  the  history  of  the  Greek  city  states 
of  the  seventh  and  following  centuries  before  the 
Christian  era,  it  cannot  be  accepted  as  any  general  or 
universal  key  to  the  political  evolution  of  later  ages.'' 

4.  Military  and  Economic  Factors.  Equally 
attractive  and  no  less  futile  is  the  attempt  to  ascribe 

^  Plato,  Republic,  bk.  viii,  §  545.    See  also  Dunning,  W.  A.,  History 
of  Political  Theories  (1902),  chap.  ii. 
^  See  part  i,  chap.  vii. 
^  Aristotle,  Politics,  iii,  chap.  15. 
*  See  in  this  connection  Warde  Fowler,  The  City-State.     1893. 


48  THE  NATURE  OF  THE  STATE 

the  evolution  of  the  modern  state  to  the  operation  of  a 
single,  or  at  any  rate  a  dominant,  motive  power.  Of 
this  an  illustration  is  seen  in  the  "'  History  of  Politics," 
already  mentioned.  "  The  origin  of  the  state,  or  polit- 
ical society,"  says  Mr.  Jenks,  "  is  to  be  found  in  the 
development  of  the  art  of  war.  .  .  .  There  is  not  the 
slightest  difficulty  in  proving  that  all  political  communi- 
ties of  the  modern  type  owe  their  existence  to  success- 
ful warfare."  *  It  is  of  course  quite  true  that  all  modern 
political  communities  have  had  to  fight  for  their  exist- 
ence. It  is  also  true  that  certain  aspects  of  their  organi- 
zation —  standing  armies,  conscription,  etc.  —  bear 
witness  to  the  importance  of  the  function  of  external 
defense.  But  it  is  not  to  be  supposed  on  this  account 
that  the  type  assumed  by  modern  political  communities 
is  to  be  ascribed  entirely  to  the  exigencies  of  their 
military  life.  Contrast  with  this  the  standpoint  of  the 
Marxian  socialists  of  Germany,  who  tell  us  that  the  de- 
velopment of  government,  along  with  that  of  all  social 
institutions,  is  to  be  attributed  solely  to  economic  fac- 
tors. The  state  represents  merely  the  organization  by 
which  the  property-owning  class  enjoys  the  fruits  of  the 
laborer's  toil.^  In  each  of  these  cases  a  single  factor  in 
the  history  of  the  modern  state  is  unduly  magnified  to 
appear  as  the  paramount  force  in  its  development. 

5.  Some  General  Features  of  Political  Evolu- 
tion. To  trace  the  rise  and  growth  of  any  particular 
state,  and  the  different  phases  of  the  evolution  of  its 
institutions,  is  the  task  of  history,  not  of  Political  Sci- 
ence.   Speaking  of  the  state  in  general  it  is  impossible 

^  History  of  Politics,  chap.  xiii. 

2  Manifesto  of  the  Communist  Party,  1848. 


THE  TRUE   ORIGIN   OF  THE   STATE  49 

to  predicate  any  universal  course  of  development  or 
any  necessary  series  of  forms  which  it  must  assume. 
Looking,  however,  at  the  present  stage  that  has  been 
reached  in  the  growth  of  political  institutions,  we  may 
nevertheless  indicate  some  of  those  general  character- 
istics which  the  modern  state  has  acquired  and  which 
differentiate  it  so  entirely  from  rudimentary  or  primi- 
tive governments.  In  the  first  place  there  has  been, 
speaking  broadly,  a  progressive  increase  in  the  extent 
of  territory  occupied  by  a  single  state.  At  the  dawn  of 
history,  mankind  is  found  grouped  in  vast  numbers  of 
small  political  communities.  On  the  map  of  the  world 
to-day  we  find  the  greater  part  of  the  inhabited  ter- 
ritory controlled  by  a  relatively  small  group  of  vast 
states.  Of  the  52,300,000  square  miles  which  make  up 
the  land  surface  of  the  globe  the  British  Empire  covers 
11,516,000,  the  Russian  Empire  8,660,000,  the  Chinese 
Empire  4,277,000,  and  the  United  States  3,567,000. 
True,  this  widening  area  of  the  territorial  political 
unit  has  not  been  literally  continuous.  The  Roman  Em- 
pire was  vastly  greater  than  such  small  modern  states 
as  Greece  or  Roumania.  But  the  tendency,  though  at 
times  interrupted  or  over-accelerated,  is  nevertheless  a 
leading  factor  in  the  history  of  the  world.  In  the  sec- 
ond place  we  may  note  the  constantly  increasing  fixity 
and  certainty  of  the  action  of  the  state.  The  rule  of  a 
primitive  government,  especially  if  spread  over  a  rela- 
tively large  area,  is  iincertain  and  irregular.  Offenses 
against  its  authority  may  or  may  not  meet  with  retri- 
bution, and  when  it  punishes  it  acts  with  a  vengeful 
severity  arising  from  its  weakness.  In  many  cases  its 
sway  is  little  more  than  nominal.    But  the  progressive 


50       THE  NATURE  OF  THE  STATE 

development  of  political  institutions  has  given  to  the 
state  an  organization  which  insures  to  it  a  definite  and 
reo;ular  action.  A  third  essential  feature  in  the  de- 
velopment  of  the  state  is  the  growth  of  political  con- 
sciousness. The  earlier  stages  of  social  union  are  largely 
intuitive  and  unconscious ;  nor  does  there  ever  come  a 
single  point  of  time  at  which  collective  action  suddenly 
becomes  deliberate.  We  have  seen  that  the  assumption 
of  such  a  step  in  political  development  was  one  of  the 
errors  of  the  social-contract  theory.  But  in  comparing 
rudimentai'y  government  with  modern  civilized  govern- 
ment we  can  observe  the  essential  difference  that  ex- 
ists in  this  respect. 

Of  the  other  broad  features  of  the  development  of 
social  structure,  the  sej^aration  that  has  been  effected 
between  the  religious  and  the  political  aspects  of  society 
may  be  especially  noted.  The  early  forms  of  govern- 
ment were  theocratic.  The  functions  of  priest  and  king 
were  intermingled  or  closely  allied.  The  divine  law  was 
presumed  to  constitute  the  sanction  behind  human  enact- 
ments. Such  is  the  system  on  which  rested  the  theocracy 
of  the  Jews.  In  the  modern  state,  however  generally 
it  may  be  admitted  among  the  citizens  that  legislation 
ought  to  be  based  on  the  ethical  principles  of  Chris- 
tianity, the  interpreters  of  the  divine  law,  in  the  form 
of  the  priesthood,  are  not  placed  in  a  position  of  civil 
authority.  The  guidance  of  the  spiritual  and  the  po- 
litical life  of  the  community  is  in  different  hands.  The 
nature  of  the  earlier  form  of  the  state  is  seen  in  the 
survival  of  established  or  partially  established  churches 
in  Great  Britain  and  some  other  European  countries. 
The  formerly  prevalent  practice  of  invoking  the  author- 


THE  TRUE  ORIGIN  OF  THE   STATE  51 

ity  o£  the  state  to  suppress  heresy  and  unbelief  rested 
on  the  same  conception  of  organization.  The  progres- 
sive separation  of  church  and  state  has  been  one  of  the 
evident  results  of  political  evolution.. 

The  growth  of  democratic  government,  the  partici- 
pation of  the  great  mass  of  the  people  in  political  con- 
trol, is  the  most  important  featui-e  in  the  development 
of  the  state.  Democratic  government  does  not,  of  course, 
exist  in  all  the  great  civilized  states,  but  in  the  chief 
of  them  —  either  in  the  shape  of  a  republic  or  under 
the  more  or  less  nominal  semblance  of  monarchy  — 
it  has  become  an  accepted  fact.  The  progress  of  de- 
mocracy has  not,  of  course,  been  continuous  and  un- 
broken. We  have  but  to  compare  the  republic  of 
Athens  with  the  principalities  of  the  dark  ages,  or  with 
France  of  the  eighteenth  century,  to  see  that  the  de- 
velopment of  self-government  has  not  moved  in  a  con- 
tinuous advance.  But  it  is  hardly  to  be  denied  that 
the  principle  of  democratic  rule  has  now  become  a 
permanent  and  essential  factor  in  political  institutions 
and  that  it  alone  can  form  the  basis  of  the  state  of  the 
future. 

READINGS  SUGGESTED 

Aristotle's  Politics  (Jowett's  translation,  1885),  bk.  i. 
Jenks,  E.,  History  of  Politics  (1900),  chap,  i-vii. 

FURTHER  AUTHORITIES 
Freeman,  E.  A.,  Comparative  Politics  (1873). 
McLennan,  J.  F.,  The  Patriarchal  Theory  (1885). 
Morgan,  L.  H.,  Ancient  Society  (1877). 
Westermarck,  E.,  History  of  Human  Marriage  (1891). 
Tarde,  G.,  Les  Transformations  du  Droit  (13th  edition),  (1900). 
Fowler,  W.,  The  City-State  (1893). 


CHAPTER  IV 
THE   SOVEREIGNTY  OF  THE   STATE 

1.  Analysis  of  the  Conception  of  Sovereignty ;  Meaning'  of  Law  and 
Right.  —  2.  The  Location  of  Sovereignty  in  Existing  Governments. 
—  3.  Criticism  of  the  Doctrine  of  Sovereignty  ;  Sir  Henry  Maine's 
Objections.  —  4.  Theory  of  Political  Sovereignty.  —  5.  Criticism.  — 
6.    Dual  or  Divided  Sovereignty. 

1.  Analysis  of  the  Conception  of  Sovereignty ; 
Meaning  of  Law  and  Right.  Having  considered  in 
the  preceding  chapters  the  general  idea  of  the  state  as 
an  organized  community  occupying  a  definite  territory, 
it  is  next  necessary  to  make  a  further  analysis  of  the 
organization  itself.  This  will  involve  the  discussion  of 
the  relations  existing  between  the  individual  citizen 
and  the  state  as  a  whole.  The  two  central  points 
around  which  the  discussion  of  the  present  and  the  suc- 
ceeding chapter  will  turn,  are  those  of  the  sovereignty 
of  the  state,  and  the  liberty  of  the  individual.  These 
two  ideas,  which  appear  at  first  sight  to  be  mutually 
contradictory,  will  be  shown  to  be  not  only  reconcila- 
ble, but  complementaiy  and  correlative  to  one  another. 

The  question  of  the  sovereignty  of  the  state  has 
long  been  a  vexed  topic  of  political  discussion,  and  one 
that  has  given  rise  to  the  most  serious  difficulties  and 
misunderstandings.  The  proposition  that  the  state  is 
absolutely  sovereign  over  the  individual  has  proved 
itself  a  stumbling-block  and  a  rock  of  offense  to  the 
student  of    political    theory.    Take,  for  example,  the 


THE   SOVEREIGNTY   OF  THE   STATE  53 

enunciation  of  the  principle  of  sovereignty  given  by- 
Professor  Burgess.  ''  I  understand  by  it,"  he  says,  "  the 
original,  absolute,  unlimited,  universal  power  over  the 
individual  subject  and  all  associations  of  subjects." 
This  is  a  hard  saying  and  one  calculated  to  call  forth 
at  first  sight  a  most  emphatic  contradiction.  It  seems 
to  sanction  the  tyranny  of  the  state,  and  to  involve 
the  sacrifice  of  individual  rights.  A  nearer  analysis 
of  the  proper  meaning  to  be  attached  to  the  sove- 
reignty of  the  state  ought  to  rob  it  of  all  offensive 
connotation.  What  is  meant  is  simply  this.  The  state 
is  an  organized  community.  It  comes  into  existence 
when  the  relations  of  control  over  and  obedience  from 
the  individual  person  are  established.  This  obedience 
may  or  may  not  receive  the  approval  of  the  individual 
rendering  it.  HhQfact  of  obedience  is  all  that  is  needed 
in  order  that  the  state  may  be  said  to  exist.  Some- 
where within  the  state  there  will  exist  a  certain  per- 
son or  body  of  persons  whose  commands  receive  obe- 
dience. The  commands  may  be  just  or  unjust,  morally 
speaking,  and  the  persons  in  power  may  be  put  in  a 
position  to  issue  them,  either  by  general  consent  or  by 
the  use  of  physical  force.  But  in  either  case  they  are 
able  to  make  their  commands  good  by  actual  coercion. 
Unless  there  is  such  a  body  there  is  no  state.  The 
commands  thus  given  are  called  laws.  A  law,  then,  is  a 
command  issued  by  the  state.  Can  there,  then,  be  any 
limit,  any  legal  limit,  to  the  sovereignty,  or  legal  su- 
premacy, of  the  state  ?  Obviously  not,  for  such  a  limit 
would  imply  a  contradiction  in  terms.  A  legal  limit 
must  mean  a  limit  imposed  by  a  lawgiving  authority. 
Now  the  lawgiving  authority  is  the  sovereign  power 


54  THE   NATURE   OF  THE   STATE 

of  the  state,  and  any  limits  it  might  put  on  its  own 
power  would  be  removed  as  soon  as  it  saw  fit  to  remove 
them.  The  lawgiving  power  of  the  lawgiving  body  is 
therefore  of  necessity  unlimited.  The  state,  in  other 
words,  is  legally  sovereign.  Looked  at  in  this  light  the 
matter  simply  resolves  itself  into  an  equation  in  terms. 
An  examination  of  the  fundamental  definition  of  law 
and  sovereignty  laid  clown  by  the  English  jurist  John 
Austin  ^  may  make  still  clearer  this  point  of  view. 
"  If  a  determinate  human  superior  not  in  the  habit  of 
obedience  to  a  like  superior  receive  habitual  obedience 
from  the  bulk  of  a  given  society,  that  determinate 
superior  is  sovereign  in  that  society,  and  that  society 
(including  the  superior)  is  a  society  political  and  inde- 
pendent." According  to  this,  then,  a  state  (or  "  society 
political  an4  independent,"  as  Austin  calls  it)  is  a  com- 
munity in  which  such  obedience  is  given  and  received. 
The  fact  of  rule  and  obedience  is  the  test  of  the  ex- 
istence of  a  state.  A  law  is  a  command  calling  for 
such  obedience.  We  must  carefully  note,  too,  the  con- 
ception of  a  right,  a  legal  right,  which  will  follow  irom 
these  premises.  It  will  mean  any  privilege  or  immu- 
nity enjoyed  by  a  citizen  as  against  any  of  his  fellow 
citizens,  granted  by  the  sovereign  power  of  the  state 
and  upheld  by  that  power.  This,  it  will  be  seen,  is  al- 
tooether  different  from  a  riffht  in  the  ethical  or  moral 
sense.  Before  the  French  Revolution,  for  example, 
under  the  state  existing  in  the  eighteenth  century,  the 
feudal  lord  had  a  "  right "  to  collect  most  oppressive 

^  John  Austin  (1790-1859),  the  chief  English  writer  on  jurisprudence 
of  the  nineteenth  century,  is  to  be  regarded  as  the  founder  of  the 
analytical  school,  whose  views  have  exercised  a  paramount  influence 
on  legal  thought  in  England  and  America. 


THE  SOVEREIGNTY  OF  THE  STATE     55 

dues  from  his  inferior.  Similarly  a  despot  might  grant 
to  one  of  his  underlings  the  "right  "  of  life  and  death 
over  the  people  of  a  subjugated  province.  It  will 
follow  that  in  the  organization  of  the  state  the  individ- 
ual can  have  no  "rights"  against  the  state  itself.  For 
this,  since  it  is  the  state  which  creates  a  legal  right, 
would  involve  a  contradiction  in  terms.  It  is  to  be 
observed  that  as  thus  understood,  the  conception  of 
sovereignty,  law,  and  right  is  altogether  divorced  from 
morality  and  ethics. 

The  misunderstanding  of  this  restricted  sense  in 
which  the  state  is  sovereign  and  law  is  unlimited  in  its 
power  leads  to  an  altogether  fallacious  form  of  objec- 
tion. Surely,  it  is  urged,  the  state  has  no  right  to  inter- 
fere with  such  things  as  the  religion  and  private  life 
of  the  individual?  Surely  there  are  limits  to  the  pro- 
vince in  which  the  commands  of  the  state  may  intrude  ? 
There  are  assuredly  such  limits  in  the  moral  sense ; 
certainly  most  persons  would  think  it  morally  wrong 
for  the  state  to  dictate  as  to  the  religious  creed  of  the 
findividual.  But  this  does  not  imply  any  legal  limit  to 
the  jurisdiction  of  the  state.  The  sovereign  body  of  the 
state  can  be  under  no  legal  restriction  as  to  its  inter- 
ference in  religion  or  any  private  matter.  If  it  were 
under  such  a  limitation  then  it  would  not  be  a  sovereign 
body ;  the  sovereignty  would  lie  in  that  person  or  per- 
sons in  whose  power  it  lay  to  assign  and  mark  off  these 
limits.  The  same  answer  is  to  be  made  to  the  various 
other  attempts  to  put  a  "limit  "  on  the  extent  of  sover- 
eign power.  Bluntschli,  for  instance,  tells  us  that  "  the 
state  as  a  whole  is  not  almighty,  for  it  is  limited  ex- 
ternally by  the  rights  of  other  states,  and  internally  by 


56  THE   NATURE   OF   THE   STATE 

its  own  nature  and  by  the  rights  of  its  individual  mem- 
bers." ^  Bentham  claimed  that  the  sovereignty  of  the 
state  was  limited  by  its  treaties  with  other  states.  But 
each  of  these  "  limits  "  is  of  an  ethical,  not  a  legal 
character.    Legally  speaking  the  state  is  almighty. 

The  misunderstanding  so  easily  engendered  here  is 
heightened  by  the  ambiguity  of  some  of  the  termino- 
logy employed  in  this  connection.  The  word  right 
has  both  its  moral  and  its  legal  sense.  In  the  former 
application  it  extends  over  the  whole  field  of  conduct, 
and  refers  to  all  those  actions  and  forbearances  which 
it  is  our  moral  duty  to  perform ;  in  the  legal  sense  it 
refers  only  to  those  actions  or  forbearances  the  j^er- 
formance  of  which  is  rendered  compulsory  by  the 
coercive  power  of  the  state.  Similarly  the  word  sove- 
reignty is  not  only  used  in  the  sense  of  legal  suprem- 
acy, but  has  also  another  connotation.  It  is  used, 
that  is  to  say,  in  a  purely  nominal  sense,  to  indicate 
the  titular  supremacy  of  a  monarch.  King  Edward 
VII  is  the  sovereign  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  but  this  is  only  titular  and  noj^ 
legal  sovereignty.  The  distinction  is  sufficiently  obvi- 
ous to  need  no  further  explanation. 

2.  The  Location  of  Sovereignty  in  Existing 
Grovernments.  The  nature  of  sovereignty  and  law 
as  thus  described  may  be  further  illustrated  by  exam- 
ining its  actual  application  to  the  case  of  some  of  the 
chief  states  of  the  world.  The  example  most  easily 
understood  is  that  of  the  British  Empire.  Here  the 
sovereign  legal  authority  lies  in  the  Parliament, — 
the  word  Parliament  having  of  course  its  technical 
^  Theory  of  (he  State,  bk.  vii,  chap.  i. 


THE   SOVEREIGNTY   OF  THE   STATE  57 

legal  meaning  of  king,  lords,  and  commons.  Parlia- 
ment is  an  absolute  legal  sovereign.  Every  law  that  it 
sees  fit  to  make  is,  ipso  facto.,  a  valid  law.  There  is  no 
(legal)  restriction  on  the  extent  of  its  jurisdiction. 
No  British  court  can  question  the  validity  of  a  statute 
duly  passed  by  Parliament.  It  is  (legally)  quite  unre- 
strained by  custom,  by  the  legislation  of  the  j)ast,  or  by 
any  of  the  written  documents  (Magna  Carta,  etc.)  which 
may  be  said  to  form  part  of  the  British  Constitution. 
No  individual  citizen  has  any  (legal)  "  riglits  "  which 
the  sovereign  j^ower  of  Parliament  could  not  annul ;  no 
local  body  or  colony  has  any  powers  of  self-government 
which  an  act  of  Parliament  could  not  abolish. 

The  example  of  the  British  Empire  seems  to  show 
the  legal  supremacy  of  the  state  in  simple  form.  The 
case  of  the  United  States,  though  more  complex,  is 
reducible  to  the  same  elements.  Plere,  at  first  sight, 
the  presence  of  the  sovereign  body  is  not  so  apjDarent. 
The  powers  of  the  government  of  any  state  of  the 
Union  —  either  executive  or  legislative  —  are  powers 
of  limited  legal  extent.  Similarly  the  powers  of  the 
federal  government  —  of  the  President  and  of  Con- 
gress, or  of  both  together  —  are  powers  of  limited  ex- 
tent. The  Congress  is  not  legally  empowered,  as  is 
the  British  Parliament,  to  make  any  law  it  may  think 
proper,  and  the  courts  can  question  the  validity  of  any 
statute,  either  state  or  federal,  which  transcends  the 
legal  powers  of  those  who  made  it.  For  example,  a  fed- 
eral law  imposing  an  export  duty  would  not  be  legally 
binding.  But  all  this  is  only  to  say  that  neither  the 
President  nor  the  Congress  nor  the  state  government 
is  the  body  invested  with  the  sovereign  power  of  the 


68  THE   NATURE   OF  THE   STATE 

state.  The  supreme  authority  lies  elsewhere.  It  is  in 
that  body  which  has  power  (legally)  to  make  auy  law 
it  wishes,  that  is  to  say  in  the  body  which  has  the  legal 
right  to  amend  the  Constitution  of  the  United  States. 
It  is  true  that  this  body,  consisting  of  a  two-thirds 
majority  of  Congress,  or  a  special  convention,  with  the 
ratification  of  three  fourths  of  the  state  legislatures  or 
of  special  conventions,^  is  not  in  permanent  session 
as  a  united  governing  body.  But  it  is  clear  that  theo- 
retically at  any  rate  it  exists,  and  may  be  looked  upon 
as  having  a  legal  supremacy  as  complete  as  that  of 
the  British  Parliament.  In  like  manner  in  the  case 
of  France,  neither  the  President  nor  the  Chamber  of 
Deputies  nor  the  Senate  has  unlimited  legal  competence. 
The  powers  of  all  of  them  are  restricted  by  the  "  consti- 
tutional laws  "  of  the  French  Republic.  But  the  Senate 
and  the  Deputies  may  be  fused  together  into  a  joint 
session  or  national  assembly,  in  which  capacity  they 
may  amend  the  constitution  and  are  legally  supreme. 

3.  Criticism  of  the  Doctrine  of  Sovereignty; 
Sir  Henry  Maine's  Objections.  Such  is  in  the  main 
the  conception  of  sovereignty  and  law  which  is  par- 
ticularly associated  with  the  modern  English  school  of 
jurists,  the  analytical  school,  as  it  is  often  called.  It 
may  be  considered  on  the  whole  the  most  satisfactory 

^  "  The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  Constitution,  or  on  the  ap- 
plication of  the  Legislatures  of  two  thirds  of  the  several  States,  shall 
call  a  convention  for  proposing  amendments  Avhich  in  either  case  shall 
be  valid  to  all  intents  and  purposes,  as  part  of  this  Constitution,  when 
ratified  by  the  Legislatures  of  three  fourths  of  the  several  States, 
or  by  conventions  in  three  fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  Congress."  Constitution  of  the 
United  States,  Art.  V. 


THE  SOVEREIGNTY  OF  THE  STATE     59 

basis  for  an  anal3^sis  of  the  political  state.  It  has,  how- 
ever, met  with  severe  and  searching  criticism,  and  has 
by  no  means  received  a  universal  acceptance.  It  is  only 
reasonable,  therefore,  to  present  in  connection  with  it 
some  of  the  chief  points  of  attack.  The  objections  raised 
against  it  are  directed  to  show  that  it  is  only  of  a  for- 
mal and  abstract  nature,  that  it  is  inadequate  in  that 
it  does  not  really  indicate  the  ultimate  source  of  polit- 
ical authority,  and  that  it  presents  an  erroneous  concep- 
tion of  the  nature  of  law. 

The  first  of  these  objections  to  the  Austinian  theory  is 
especially  urged  in  the  criticism  offered  by  the  English 
jurist  Sir  Henry  Maine  in  his  Oxford  lectures  on  the 
"  Early  History  of  Institutions."  ^  From  his  seven  years' 
experience  as  legal  member  of  the  council  for  India, 
Maine  was  brought  in  contact  with  a  civilization  of  an 
essentially  different  character  from  the  environment 
of  English  legal  institutions  which  had  been  the  basis 
of  Austin's  work.  In  Eastern  countries  immemorial 
custom  reigns  supreme.  The  idea  of  deliberate  statu- 
tory enactment  is  alien  to  the  oriental  mind,  and  the 
most  ruthless  of  Eastern  despots  finds  his  power  con- 
trolled by  the  barriers  of  ancient  usage  and  religious 
awe.  Maine  was,  therefore,  led  to  question  whether 
there  is  "  in  every  independent  political  community 
some  single  person  or  combination  of  persons  which 
has  the  power  of  compelling  the  other  members  of  the 
community  to  do  exactly  as  it  pleases."  The  presump- 
tion that  every  commixnity,  except  during  temporary 
intervals  of  disturbance,  contains  this  individual  or 
collegiate  sovereign  "  as    certainly  as    the    centre    of 

1  See  Early  History  of  Institutions,  lectures  xii  and  xiii. 


60  THE  NATURE  OF  THE  STATE 

gravity  in  a  mass  of  matter,"  seemed  to  him  unwar- 
ranted by  historical  or  actual  fact.  Particularly  is  this 
the  case  with  communities  of  the  oriental  type.  Maine 
instances  the  example  of  Runjeet  Singh,  the  despot 
of  the  Punjaub,  "  the  smallest  disobedience  to  whose 
commands  would  have  been  followed  by  death  or  mu- 
tilation." In  spite  of  this  ruler's  extensive  power  he 
never  "  issued  a  command  which  Austin  would  call  a 
law.  .  .  .  The  rules  which  regulated  the  lives  of  his 
subjects  were  derived  from  their  immemorial  usages, 
and  these  rules  were  administered  by  domestic  tribu- 
nals." The  inevitable  conclusion  seems  to  be  that  the 
conceptions  of  sovereignty,  state,  and  law  adopted  in 
the  Austinian  jurisprudence  are  inapplicable  to  com- 
munities of  this  description.  But  it  is  not  only  in 
regard  to  oriental  society  that  Maine  finds  Austin's 
analysis  inadequate.  Even  in  the  world  of  western 
civilization  it  is  only  true  as  the  result  of  a  process  of 
abstraction  which  "  throws  aside  all  the  characteristics 
and  attributes  of  government  and  society  except  one," 
namely,  the  possession  of  foi'ce  ;  this  explanation  of 
political  power  by  reference  solely  to  a  single  attribute 
disregards  at  the  same  time  "  the  entire  history  of  the 
community,  .  .  .  the  mass  of  its  historic  antecedents, 
which  in  each  community  determines  how  the  sove- 
reign shall  exercise,  or  forbear  from  exercising,  his  ir- 
resistible coercive  power." 

The  nature  of  this  objection  had,  indeed,  been  in  some 
measure  anticipated  by  Austin  himself.  In  order  to 
cover  all  those  cases  of  usage  in  which  not  the  direct 
command  of  the  sovereign  but  dictates  of  customary 
procedure  obtained    sway,   he  laid  down   the  maxim, 


THE  SOVEREIGNTY   OF  THE  STATE  Gl 

"What  the  sovereign  permits  he  commands."  The  ap- 
plication of  this  doctrine  may  be  best  seen  in  the  ease  of 
the  English  common  (or  customary)  law.  This  is  a  body 
of  regulations  never  expressed  in  the  form  of  statutes 
issued  by  the  sovereign  Parliament,  but  existing  from 
ancient  times,  and  constantly  modified  and  expanded 
by  the  interpretation  of  the  courts.  It  would  be  quite 
wrong,  Austin  argues,  to  hold  that  the  existence  and 
continuance  of  this  body  of  law  is  any  indication  of  a 
limitation  of  the  sovereign  power  of  Parliament.  For 
since  the  latter  is  admittedly  competent  to  alter  or  abro- 
gate the  common  law  as  it  sees  fit,  the  continued  exist- 
ence thereof  is  to  be  viewed  as  virtually  by  command 
of  Parliament.  This  argument  is  undoubtedly  true  in 
reference  to  the  legal  validity  of  the  common  law.  The 
attempt,  however,  to  apply  it  to  such  cases  as  that  of 
the  Punjaub  despot  seems  entirely  erroneous.  For  in 
this  instance  the  sovei-eign  has  no  alternative  but  to 
"  permit "  what  he  cannot  alter.  Only  an  exaggera- 
tion of  terms  could  convert  this  into  sovereignty.  On 
the  same  ground  any  one  might  "  permit "  the  law  of 
gravitation  to  continue  in  force. 

It  may  perhaps  reasonably  be  held  that  Austin's 
analysis  is  applicable  to  modern  civilized  states,  but 
inapplicable  to  half-organized  or  primitive  communities. 
Even  in  the  case  of  civilized  states,  it  is  true  that  the 
theory  is  in  a  certain  sense  an  abstraction.  "  It  is  true," 
says  Sir  James  Stephen,  in  speaking  of  the  theory  of 
sovereignty,^  "like  the  propositions  of  mathematics  or 

^  Horce  Sabbaticw,  second  series,  chap.  i.  The  author  is  speaking'  of 
the  theory  as  laid  down  hy  Hobbes,  but  the  remarks  apply  equally  well 
to  the  more  modern  form  of  the  doctrine. 


62  THE  NATURE  OF  THE  STATE 

political  economy,  in  the  abstract  only.  That  is  to  say, 
the  propositions  which  it  states  are  propositions  which 
are  suggested  to  the  imagination  by  facts,  though  no 
facts  completely  embody  and  exemplify  them.  As  there 
is  in  nature  no  such  thing  as  a  perfect  circle,  or  a  com- 
pletely rigid  body,  or  a  mechanical  system  in  which 
there  is  no  friction,  or  a  state  of  society  in  which  men 
act  simply  with  a  view  to  gain,  so  there  is  in  nature  no 
such  thing  as  an  absolute  sovereign."  With  these  lim- 
itations the  Austinian  theory  may  be  looked  upon  as 
substantially  correct.  Its  application  is  to  be  viewed 
as  limited  to  communities  definitely  organized.  The 
analysis  of  political  power  which  it  offers  is  not  meant 
as  an  explanation  of  the  ultimate  source,  the  first  cause, 
of  authority,^  but  merely  intended  as  a  universal  ab- 
stract formula,  indicating  the  method  of  its  operation  in 
the  modern  world.  To  accept  the  doctrine  in  this  sense, 
is  of  course  necessarily  to  restrict  the  connotation  of 
the  terms  state  and  law.  The  term  state  will  include 
only  communities  possessing  the  requisite  finality  of  or- 
ganization, and  fixed  relations  of  command  and  obedi- 
ence. A  law  will  connote  only  a  command  issued,  either 
directly  or  indirectly  (through  deliberate  refusal  to  con- 
travene an  established  usage)  by  the  sovereign  organi- 

^"The  question  who  is  the  legal  sovereign,"  says  Bryce,  "stands 
quite  apart  from  the  questions  why  is  he  sovereign,  and  who  made  him 
sovereign.  The  historical  facts  which  have  vested  power  in  any  given 
sovereign,  as  well  as  the  moral  grounds  on  which  he  is  entitled  to 
obedience,  lie  outside  the  questions  with  which  law  is  concerned,  and 
belong  to  history,  to  political  philosopliy,  or  to  ethics ;  and  nothing  but 
confusion  is  caused  by  obtruding  them  into  tlie  purely  legal  questions 
of  the  determination  of  the  sovereign  and  the  definition  of  his  powers." 
Studies  in  History  and  Jurisprudence. 


THE  SOVEREIGNTY  OF  THE  STATE     63 

zation  of  the  state.  What  is  thus  lost  in  width  of  con- 
notation will  be  gained  in  precision  and  significance. 

Many  authors  prefer,  however,  to  widen  the  terms 
state  and  law,  in  order  to  meet  Maine's  criticism,  and 
to  include  the  oriental  or  other  communities  whose 
political  cohesion  does  not  correspond  to  the  Austinian 
analysis.  Woodrow  Wilson,^  for  instance,  presents  a 
conception  of  law  which  does  not  identify  it  with  a 
definite  command,  but  endeavors  to  include  in  it  those 
customary  usages  which  have  become  of  binding  force. 
"  Law,"  he  says,  "  is  that  portion  of  the  established 
thought  and  habit  which  has  gained  distinct  and  formal 
recognition  in  the  shape  of  uniform  rules  backed  by 
the  authority  and  power  of  government."  Of  these 
rules  deliberate  enactment  is  only  one  of  the  contrib- 
utory sources.  They  arise  in  part  from  long  standing 
custom  "shaped  by  the  cooperative  action  of  the  whole 
community,  and  not  by  any  kingly  or  legislative  com- 
mand." Among  the  other  sources  of  law  are  the  rules 
of  conduct  dictated  by  religious  belief,  and  the  decisions 
of  those  who  adjudicate  upon  the  law  already  existing 
and  thus  expand  its  meaning.  The  view  here  adopted 
by  Professor  Wilson  is  intended  to  harmonize  the  ana- 
lytical account  of  law  with  the  criticism  offered  by 
Sir  Henry  Maine.  But  it  is  perhaps  open  to  question, 
■whether  in  the  case  of  civilized  states  the  maxim  "  what 
the  sovereign  permits  he  commands  "  will  not  bring  the 
sources  of  law  above  mentioned  within  the  sphere  of 
the  Austinian  formula. 

4.  Theory  of  Political  Sovereignty.  In  addition 
to  the  criticism  of  the  Austinian  theory  of  sovereignty 

1  The  State,  chap.  xiv. 


64  THE  NATURE  OF  THE  STATE 

thus  indicated,  exception  has  been  taken  to  it  upon 
a  somewhat  different  ground.  The  conception  of  legal 
authority,  it  is  argued,  though  undeniable  as  far  as 
it  goes,  does  not  go  far  enough ;  while  indicating  the 
person  or  body  of  persons  legally  competent  to  issue 
sovereign  commands  to  the  rest  of  the  community, 
it  does  not  really  trace  out  the  ultimate  repository 
of  political  power.  In  a  despotic  monarchy,  the  will  of 
the  monarch  may  be  the  sole  lawful  authority,  but  the 
monarch  himself  may  be  merely  the  pliant  tool  of  a 
cunning  priest  or  dominating  vizier.  In  countries  with 
representative  government,  the  elected  governing  body 
may  have  or  seem  to  have  a  temporary  legal  control, 
but  what  are  we  to  say  of  the  general  body  of  electors, 
whose  will  they  represent,  and  from  whom  they  derive 
their  authority?  Is  it  an  adequate  explanation  of  politi- 
cal cohesion  and  obedience  to  stop  short  of  the  legal 
supremacy  of  a  king  or  legislature,  whose  power  may 
be  nominal,  illusory,  or  delegated,  and  to  refuse  to 
recognize  the  real  and  paramount  source  of  authority 
which  lies  behind  it? 

On  these  grounds  several  writers  have  recently  sought 
to  amend  the  Austinian  theory  by  appending  to  the  con- 
ception of  pure  legal  sovereignty  that  of  real,  or  "poli- 
tical sovereignty."  ^  Their  intention  is  not  to  set  aside 
the  result  of  Austin's  analysis,  but  merely  to  draw  at- 
tention to  the  fact  that  it  does  not  seem  to  offer  a  com- 

^  For  the  theory  of  political  sovereig'iity  the  student  may  consult  A. 
V.  Dicey,  Law  of  the  Constitution;  David  G.  Ritchie,  Principles  of  State 
Interference  ;  Sidgwick,  Elernents  of  Politics,  chap,  xxxi,  and  M'Kechnie, 
State  and  Individual,  chap,  ix,  x.  All  of  these  authorities  consider 
the  distinction  between  legal  and  political  soveroijnty  both  tenable 
and  valuable. 


THE  SOVEREIGNTY  OF  THE  STATE     65 

plete  explanation  of  the  nature  and  location  of  supreme 
political  power.  "  Behind  the  sovereign  which  the  law- 
yer recognizes,  there  is,"  says  Professor  Dicey,  "another 
sovereign  to  whom  the  legal  sovereign  must  bow." 
Professor  Sidgwick  illustrates  the  point  involved  by 
constructing  hypothetical  cases  in  which  the  ultimate 
political  power  is  clearly  not  in  the  hands  of  the  legal 
sovereign.  "  An  ii-responsible  dictator  appointed  by  a 
popular  assembly  for  a  term  of  years  and  not  desiring 
reappointment"  might  be  said  to  be  legally  and  actually 
sovereign.  But  should  he  be  anxious  for  reappointment, 
then  the  assembly  to  whose  wishes  he  must  bow  be- 
comes the  paramount  political  influence,  and  his  legal 
sovereignty  is  no  longer  the  final  seat  of  actual  power. 
Or  let  us  "  suppose  that  a  monarch  habitually  obeys  a 
priest,  not  from  fear  of  the  extra-mundane  penalties 
threatened  by  the  latter,  but  from  fear  of  finding  it 
difficult  to  obtain  obedience  from  his  subjects  if  they 
believe  him  to  be  a  special  object  of  God's  anger  —  we 
shall  agree  that  he  no  longer  possesses  completely  sover- 
eign power."  Following  upon  this  line  of  argument  we 
might  well  expect  to  find  that  the  legal  and  the  political 
sovereigns  would  but  rarely  coincide.  In  one  state  the 
priesthood,  in  another  the  military  or  landed  classes, 
in  another  the  personal  entourage  of  the  king  or  the 
predominant  influence  of  a  metropolis,  might  supply 
the  real  motive  power  that  controls  the  public  adminis- 
tration. 

Here  it  might  well  be  suggested  that  the  sovereign 
political  power  would  in  many  cases  lie  with  the  gen- 
eral mass  of  the  people,  or  at  any  rate  with  the  general 
mass  of  voters,  who  constitute  in  democratic  countries 


66  THE  NATURE   OF  THE   STATE 

about  one  fifth  of  the  entire  population.  Austin  him- 
self, in  this  particular,  fell  into  an  amazing  error  in 
that  he  attempted  to  attribute  not  the  political  but  the 
legal  sovereignty  itself  to  the  body  of  the  electorate. 
The  fallacy  ^  is  here  obvious.  For  although  the  voters 
are  empowered  by  law  to  elect  members  of  the  legisla- 
ture at  stated  intervals,  they  have  (legally)  no  power 
of  political  action  beyond  this.  Under  most  govern- 
ments they  cannot  pass  a  law  or  negative  measures 
of  the  legislature.  In  Great  Britain,  for  instance, 
the  Parliament  (legally  speaking)  would  be  perfectly 
competent  to  pass  a  law  declaring  its  own  existence 
permanent  and  robbing  the  voters  of  their  electoral 
privileges.  Only  in  a  country  where  the  system  of  the 
initiative  and  the  referendum^  were  made  obligatory 
and  universal  could  the  electors  be  said  to  be  legally 
sovereign.  But  without  falling  into  this  confusion 
whereby  Austin  mars  the  precision  of  his  own  system, 
it  may  be  argued  with  much  plausibility  that  the  ulti- 
mate political  sovereignty  rests  with  the  electorate. 
Much,  however,  may  be  advanced  against  this  view.  Is 
it  not  quite  conceivable  that  the  voters  themselves  may 
be  under  the  dominance  of  a  priesthood,  or  practically 
under  the  dictates  of  the  land-owners  or  aristocracy  or 
some  particular  class  ?  In  such  cases  the  political  sov- 
ereignty would  have  to  be  traced  a  step  beyond  the 
electorate.  Is  it  not,  moreover,  to  be  supposed  that  the 
electorate  may  be  largely  influenced  by  the  other  four 
fifths  of  the  nation,  who  constitute  the  non-voting  class  ? 

1  Professor  Sidgwick  in  an  appendix  to  his  Elements  of  Politics  de- 
monstrates the  absurdity  of  Austin's  position. 

*  Sec  part  ii,  chap,  iv,  below,  Judiciary  and  Electorate. 


THE  SOVEREIGNTY  OF  THE  STATE     67 

It  does  not  seem  to  follow  tbat  the  voters  of  a  demo- 
cratic country  always  and  of  necessity  represent  tlie 
final  and  ultimate  source  of  authority. 

5.  Criticism.  Indeed,  the  more  one  searches  for  this 
final  authority  the  more  it  seems  to  elude  one's  grasp. 
At  its  first  statement  the  idea  of  a  political  sovereignty 
appears  eminently  reasonable.  On  closer  examination 
it  becomes  a  sort  of  political  "  first  cause,"  and  is  as 
unfindable  in  the  domain  of  politics  as  in  that  of  phys- 
ics. The  moment  one  passes  from  the  dry  certainty 
of  the  Austinian  conception  of  legality,  all  is  confusion. 
The  pai'ticular  set  of  persons  in  a  modern  state  who 
are  invested  with  unlimited  law-making  power  are  a 
definite  and  findable  body.  The  particular  person,  or 
set  of  persons,  whose  will  is  in  reality  supreme,  fades 
upon  analysis  into  a  vague  complexity. 

Professor  Ritchie  and  others  have  sought  to  avoid 
this  difficulty,  by  laying  down  the  theory  that  the  ulti- 
mate repository  of  political  power  is  always  found  in 
the  mass  of  the  people.  By  whatever  routes  it  is  traced, 
whether  directly  through  electoral  power,  or  indirectly 
through  influence,  intimidation,  or  potential  rebellion, 
the  final  source  of  authority  is  here  to  be  discovered. 
"  The  people  "  possess  the  physical  power.  In  the  last 
resort  —  the  appeal  to  force  —  they  are  bound  to  pre- 
vail. Any  form  of  rule  to  which  they  submit  exists 
therefore  only  by  virtue  of  their  tacit  consent.  We 
have  thus  a  theory  of  popular  sovereignty  carried  to  an 
extreme  point.  Such  a  theoi-y  does  not  content  itself 
with  saying  that  the  people,  the  majority  of  the  people, 
ought  to  possess  the  supreme  power,  but  that  in  all  cases 
they  actually  do  possess  it.   Having  the  physical  supe- 


68  THE   NATURE   OF  THE   STATE 

rioi'ity  which  would  enable  them  if  sufficiently  pro- 
voked to  annihilate  the  existing  government,  there  must 
always  be  limits  to  the  extent  of  coercion  that  they 
will  suffer.  Obedient  as  they  may  be  within  these 
limits,  they  are  in  the  last  resort  the  masters.  The  con- 
sent by  which  they  permit  the  existence  of  the  govern- 
ment, is  a  tacit,  and  perhaj3S  unconscious,  acquiescence 
rather  than  the  explicit  formula  of  contract  that  was 
present  to  the  minds  of  Rousseau's  citizens ;  none  the 
less  it  is  true  that  they  do  give  this  consent,  and  that 
it  is  the  real  universal  basis  of  political  sovereignty. 
"  The  Czar  of  all  the  Russias,"  says  Mr.  Ritchie, 
"  rules  by  the  will  of  his  people,  as  much  as  does  the 
executive  of  the  Swiss  Federation."  ^ 

Attractive  as  is  such  a  theory  of  popular  sovereignty, 
it  rests  upon  grounds  essentially  fallacious.  It  assumes 
that  the  superiority  in  actual  physical  force  must  of 
necessity  rest  with  the  mass  —  the  majority  —  of  the 
people.  To  suppose  this  is  to  leave  altogether  out  of 
sight  the  question  of  military  equipment,  organization, 
and  mutual  understanding.    A  nation  of  a  million  un- 

■*  Professor  Ritchie  includes  in  the  sources  of  political  power  all 
those  influences,  historic  and  actual,  -which  contribute  to  the  present 
disposition  and  opinion  of  the  governed.  "  The  ultimate  political  sove- 
reignty is  not  the  determinate  number  of  persons  now  existing  in  the  na- 
tion, but  the  opinions  and  feelings  of  these  persons  ;  and  of  these  opin- 
ions and  feelings  the  traditions  of  the  past,  the  needs  of  the  present, 
and  the  hopes  of  the  future  all  form  a  part."  In  the  ease  of  the  Russian 
people,  Mr.  Ritchie  argues  that  "  the  belief  in  the  Czar's  divine  right 
is  the  source  of  his  power,  and  the  ground  of  his  obedience."  A  similar 
point  of  view  appears  in  M'Keehnie's  State  and  Individual.  "  The  effect- 
ive force  of  a  nation  remains  with  the  whole  body  of  its  members, 
whatever  forms  of  expression  or  outlet  it  may  find,  and  whatever  agents 
may  be  legally  empowered  to  act  or  think  for  it.  The  real  or  '  political ' 
sovereign  lies  in  the  will  of  the  people." 


THE   SOVEREIGNTY   OF  THE   STATE  69 

armed  men  could  easily  be  overawed  by  a  force  o£  a 
hundred  thousand  soldiers  equipped  with  modern  weap- 
ons and  acting  as  a  disciplined  unit.  Because  a  hun- 
dred convicts  "  acquiesce  "  in  the  control  exercised  by 
a  dozen  armed  sentinels,  it  cannot  be  argued  that  the 
power  of  the  sentinels  rests  either  immediately  or  ulti- 
mately upon  the  consent  of  these  convicts.  Whatever 
be  the  proper  interpretation  of  the  political  cohesion 
of  modern  Russia,  it  is  at  least  conceivable  that  the  sup- 
port extended  to  the  autocracy  by  the  vast  army  in  its 
pay  may  have  as  much  to  do  with  its  maintenance  as  the 
good-will  of  the  people  at  large.  It  seems  evident  upon 
examination  that  the  numerical  majority  is  not  of  ne- 
cessity always  the  stronger  power.  It  becomes  so  only 
in  proportion  as  it  enjoys  the  advantages  of  organiza- 
tion, equipment,  and  ability  to  act  on  a  preconcerted 
plan.  Hence  in  order  to  make  the  theory  of  political 
sovereignty  stand  upright  it  is  necessary  to  again  shift 
the  ground  and  to  claim  that  the  ultimate  sovereignty 
lies  not  with  the  mass  of  the  people,  nor  with  the  nu- 
merical majority,  but  with  the  strongest  group  of  per- 
sons trained  to  act  together.  But  since  a  group  is  usually 
trained  only  to  act  together  in  a  prescribed  way,  and 
at  the  dictates  of  a  particular  person  or  set  of  persons, 
it  is  clear  that  it  is  not  the  collective  will  of  this  armed 
force  itself  which  exercises  the  supreme  control,  but 
that  of  the  person  or  persons  whom  they  are  individu- 
ally trained  to  obey.  Thus  the  search  for  ultimate  sov- 
ereignty relapses  into  the  same  vagueness  as  before. 

6.  Dual  or  Divided  Sovereignty.  The  peculiar 
situation  of  the  United  States  in  reference  to  the  ex- 
ercise of  supreme  and  unlimited  power  has  given  rise 


70  THE  NATURE   OF   THE   STATE 

to  another  attempt  to  alter  this  universal  formula  of  a 
single  sovereign  body.  In  this  country,  as  already  said, 
neither  the  federal  government  nor  the  government  of 
an  individual  state  has  unlimited  power.  The  precise 
nature  of  the  constitutional  power  of  the  two  was  long 
a  subject  of  intense  controversy.  In  this  controversy 
there  was  developed  the  theory  of  a  divided  or  dual 
sovereignty.  According  to  this  doctrine  the  totality  of 
sovereign  power  was  divided  between  the  state  and 
federal  governments,  each  of  which  was  sovereign  in 
its  own  province,  but  was  legally  limited  outside  of  its 
own  province  by  the  sovereignty  of  the  other.  Such 
a  view  of  sovereignty  is  utterly  inconsistent  with  the 
conception  of  sovereign  power  discussed  above.  The 
proper  application  of  the  analytical  view  of  sovereignty. 
to  a  federal  government  will  be  discussed  in  dealing 
with  the  general  subject  of  federal  organization. 

READINGS  SUGGESTED 
Austin,  J,,  Lectures  on  Jurisprudence  (4th  edition,  1879),  vol.  i, 

lecture  vi. 
Maine,  Sir  H.,  Early  History  of  Institutions  (1875)  (4th  edition, 

1885),  chaps,  xii,  xiii. 
Sidgwick,  H.,  Elements  of   Politics   (2d  edition,   1897),   chap, 
xxxi. 

FURTHER  AUTHORITIES 

Bryce,  James,  Studies   in  History  and  Jurisprudence,  Essay  X 

(1901). 
Merriam,  C.  E.,    History    of   the  Theory  of   Sovereignty  since 

Rousseau  (1900). 
Stephen,  Sir  James,  Plorje  Sabbaticfe,  Second  Series,  chap,  iv 

(1892). 
M'Kechnie,  W.  S.,  The  State  and  the  Individual  (1896). 
Ritchie,  D.  G.,  Principles  of  State  Interference  (1891). 
Dicey,  A.  V.,  Law  of  the  Constitution  (1st  edition,  1885). 


CHAPTER  V 
THE  LIBERTY  OF  THE  INDIVIDUAL 

1.  Formulation  of  the  Idea  of  Civil  Liberty;  its  Dependence  on  a 
Coercive  Sovereign  Power.  —  2.  Special  Senses  sometimes  attached 
to  the  Term  Liberty.  —  3.  Organic  Theory  of  the  State.  —  4.  Criti- 
cism. —  5.  Elaborate  Analogies  of  Spencer,  Schiiffle,  etc. ;  the  Per- 
sonality of  the  State.  —  6.  Criticism. 

1.   Formulation  of  the  Idea  of  Civil  Liberty; 
its  Dependence  on  a  Coercive  Sovereign  Povsrer. 

The  formulation  of  the  theory  of  the  sovereignty  of 
the  state  does  not  exhaust  the  consideration  of  the  re- 
lations existing  between  the  state  and  the  individual. 
The  present  chapter  is  to  be  devoted  to  the  further 
elucidation  of  the  position  of  the  individual  under 
organized  political  control,  and  to  the  nature  and  scope 
of  individual  liberty.  At  first  sight,  the  ideas  of  state 
sovereignty  and  individual  liberty  appear  in  sharp  con- 
trast. When  we  say  that  the  state  is  legally  supreme, 
that  there  is  no  limit  to  its  lawful  power,  and  that  the 
individual  can  have  no  lawful  rights  as  against  its 
authority,  we  seem  to  have  denied  the  existence  of  in- 
dividual liberty.  A  closer  examination  of  the  meaning 
to  be  attached  to  the  terms  involved  will  serve  to  dis- 
sipate this  view.  It  will  appear  that  sovereignty  and 
liberty,  far  from  being  contradictory,  are  correlative 
terms,  and  that  no  legal  conception  of  individual  lib- 
erty is  possible  without  the  assumption  of  a  sovereign 
power. 


72  THE   NATURE   OF   THE   STATE 

Let  us  begin  by  observing  that  such  terms  as  "  lib- 
erty," "  freedom,"  and  "  free  "  are  used  in  a  variety  of 
senses,  and  with  great  latitude  of  connotation.  "  To 
Bacon  and  to  King  James,"  writes  Professor  Ritchie, 
"  a  '  free '  monarchy  meant  an  absolute  monarchy,  so 
that  a  'free'  monarchy  is  incompatible  with  what  we 
call  '  free '  government.  The  '  liberties  '  of  corpora- 
tions, classes,  or  individuals  mean  their  special  privi- 
leges, and  thus  involve  considerable  interference  with 
'liberties'  of  the  non-privileged.  'Freedom  of  contract' 
may  result  in  the  practical  bondage  of  one  of  the  parties 
to  the  other.  A  '  free  '  church  may  allow  less  '  liberty ' 
of  thought  than  churches  which  are  not  liberated  from 
the  state."  ^  To  the  difficulties  suggested  by  these 
special  instances  must  be  added  the  fact  that  the  term 
liberty  is  used  also  as  a  vague  generality  to  stand  for 
something  evidently  desirable,  and  yet  so  simple  in  its 
nature  as  to  need  no  further  definition.  It  is  freely 
assumed  that  every  one  ought  to  have  complete  liberty, 
and  that  every  violation  of  liberty  is  an  injustice,  with- 
out the  need  being  felt  of  any  special  inquiry  into 
the  meaning  of  liberty  itself.  To  reduce  the  term  to  a 
definite  and  exact  signification  will  serve  at  once  to 
destroy  the  mythical  and  impossible  idea  of  individual 
freedom,  in  the  light  of  which  the  coercive  power  of 
the  state  seems  unjustifiable.  Such  an  idea  appears  in 
extreme  form  in  the  assumption,  already  referred  to, 
of  a  "  natural  liberty,"  enjoyed  by  man  independently 
of,  and  antecedent  to,  the  existence  of  the  state,  and  of 
which  the  institution  of  the  state  constitutes  an  abridg- 
ment.   "  What  a  man  loses  by  the  social  contract,"  said 

^  Ritchie,  Natural  Rights,  chap.  vii. 


THE   LIBERTY  OF  THE   INDIVIDUAL  73 

Rousseau,  "  is  his  natural  liberty  and  an  unlimited  right 
to  anything  that  tempts  him  which  he  can  obtain."  ^ 
Of  a  similar  character  is  the  confused  ideal  of  liberty 
which  lies  at  the  basis  of  anarchism,  or  the  negation 
of  the  right  of  coercion. 

On  examination  it  will  appear  that  such  a  concep- 
tion of  liberty  is  impossible,  except  it  be  for  one  person 
omnipotent  in  power.  The  claim  that  a  person  in  the 
enjoyment  of  natural  liberty  would  have  an  unlimited 
right  to  anything  he  might  desire,  would  carry  with  it 
the  consequence  that  a  great  number  of  persons  might 
have  an  unlimited  right  to  the  same  thing.  It  is  diffi- 
cult to  attach  any  meaning  to  the  words  "  liberty  "  and 
"  right "  that  will  make  such  a  proposition  anything 
but  absurd.  Indeed,  the  statement  is  clearly  self-con- 
tradictory and  inconsistent.  "  Liberty  in  its  absolute 
sense,"  says  Lieber,^  "  means  the  faculty  of  willing 
and  the  power  of  doing  what  has  been  willed,  without 
influence  from  any  other  source,  or  from  without.  .  .  . 
In  this  absolute  meaning  there  is  but  one  free  being, 
because  there  is  but  one  being  whose  will  is  absolutely 
independent  of  any  influence  but  that  which  he  wills 
himself,  and  whose  power  is  adequate  to  his  absolute 
will,  — who  is  almighty."  It  is  clear,  then,  that  a  lib- 
erty of  this  absolute  and  unrestrained  character  is  an 
impossibility  for  every  individual  at  the  same  time.  It 
can  exist  neither  by  the  agency  nor  by  the  absence  of 
the  state.    The  utmost  freedom  of  action  that  each  and 

^  Social  Contract,  bk.  i,  chap.  viii. 

2  Franz  Lieber,  Civil  Liberty  (1852).  Lieber  (1800-72),  one  of  the 
most  distinguished  of  American  writers  on  political  science,  was  for 
some  time  a  professor  at  Columbia  CoUeg-e.  Of  his  other  works,  Po- 
litical Ethics  (1838)  is  perhaps  the  most  important. 


74  THE   NATURE   OF  THE   STATE 

every  individual  can  enjoy  upon  like  terms  at  the  same 
time  is  to  be  completely  unrestrained  in  his  actions  in 
so  far  as  they  do  not  interfei-e  with  the  like  freedom 
of  his  fellows.  This  conception  of  liberty,  though  lim- 
ited, is  entirely  self-consistent.  The  liberty  of  one  is 
not  a  contravention  of  the  liberty  of  another.  Such 
is  the  interpretation  of  liberty  fovmd  in  the  famous 
Declaration  of  the  Rights  of  Man,  adopted  in  France 
in  1789  :  "  Liberty  consists  in  the  power  to  do  every- 
thing that  does  not  injure  another."  Herbert  Spencer 
expresses  the  same  idea  in  what  he  calls  the  "  formula 
of  justice  :  "  "  Every  man  is  free  to  do  that  which  he 
wills,  provided  he  infringes  not  the  equal  freedom  of 
any  other  man." 

As  thus  conceived,  liberty  is  not  inconsistent  with 
the  exercise  of  coercive  power.  On  the  contrary,  since 
the  freedom  from  interference  can  only  be  enjoyed 
by  the  forcible  prevention  of  interference,  liberty  is 
seen  to  be  dependent  upon  the  existence  of  authority. 
It  is  the  state  which  guarantees  this  immunity  to  its 
citizens,  whose  "  rights  "  are  thus  brought  into  legal 
existence  by  being  clothed  with  the  "  sanction  "  or  com- 
pelling force  of  the  power  of  the  state.  The  apparent 
paradox  between  a  sovereign  authority  and  a  free  citi- 
zen is  thus  explained.  No  freedom,  except  for  a  single 
being,  can  be  absolute  and  complete.  Such  freedom  as 
can  be  enjoyed  by  all  must  from  its  nature  imply  a 
compulsory  restriction  on  the  action  of  each.  It  is  the 
office  of  the  state  to  effect  this  restriction,  and  in  so 
doing  to  bring  liberty  into  being.  It  is  usual  to  attach 
to  this  conception  of  individual  freedom  effected  by  the 
existence  of  a  coercive  state  the  term  "  civil  liberty." 


THE  LIBERTY  OF  THE  INDIVIDUAL  75 

A  further  point  of  great  importance  is  to  be  noted 
in  connection  with  .the  present  topic.  It  is  true  that 
liberty  as  thus  defined  is  only  possible  for  the  indi- 
vidual by  the  action  of  the  state.  It  does  not  follow, 
however,  that  it  is  the  duty  of  the  state  to  find  the 
ideal  of  its  action  in  the  maintenance  of  individual 
liberty  :  that  is  to  say,  to  confine  its  operating  to  en- 
forcing non-interference,  and  to  extend  its  coercive 
power  no  further  than  is  necessary  to  prevent  the  citi- 
zens from  interfering  with  one  another.  Writers  of 
various  schools,  and  especially  the  individualists  of  the 
earlier  nineteenth  century,  have  held  this  to  be  the 
sole  duty  of  government.  The  conception  of  liberty 
seemed  to  them  to  imply  that  no  infringement  of  the 
principle  could  be  justified.  But  the  question  natu- 
rally arises  whether  the  state  may  not  be  warranted  in 
exercising  a  positive  as  well  as  a  negative  coercion 
over  its  subjects.  May  it  not  with  reason  interfere 
with  and  curtail  the  liberty  of  a  citizen,  provided  that 
the  general  good  or  his  own  advantage  is  thereby  fur- 
thered .^  The  full  treatment  of  this  question  will  belong 
to  our  discussion  of  the  proper  province  of  govern- 
ment. All  that  need  be  noted  in  the  mean  time  is  that, 
whether  the  state  is  called  upon  to  maintain  the  liberty 
of  the  individual,  or  whether  it  is  held  advisable  that 
the  state  should  interfere  with  his  actions  in  a  positive 
form,  the  existence  of  liberty  is  not  logically  incom- 
patible with  the  existence  of  the  state,  and  can  hardly 
be  thought  of  as  existing  apart  from  it. 

2.  Special  Senses  sometimes  attached  to 
the  Termi  Liberty.  The  word  liberty,  in  addition 
to  the  vague  general  use  which  we   have   discarded 


76  THE   NATURE   OF  THE   STATE 

and  the  definite  conception  of  civil  liberty  which  we 
have  adopted,  has  also  been  used  in  political  writings 
in  other  special  senses.^  It  is  often  used  to  designate 
a  condition  of  national  independence.  When  we  refer 
to  the  present  liberty  of  the  Greeks,  or  the  desire  for 
liberty  on  the  part  of  the  Poles,  it  is  evidently  in  this 
sense  that  the  word  is  used.  It  is  perhaps  convenient 
to  use  the  expression  "  national  liberty  "  to  indicate 
freedom  of  this  kind. 

In  the  next  place,  there  is  a  use  of  "  liberty  "  which 
refers  neither  to  freedom  from  interference  nor  to  na- 
tional autonomy.  When  we  say  that  the  United  States, 
France,  and  Great  Britain  enjoy  the  advantages  of  a 
free  government,  we  mean  thereby  a  government  which 
is  chosen  by,  and  which  is  responsible  to,  the  general 
body  of  the  people.  Liberty  in  this  sense,  or  constitu- 
tional liberty,  as  it  may  be  called,  means  popular  govern- 
ment definitely  established.  Historically  speaking,  we 
often  use  the  term  constitutional  liberty  to  refer  to  in- 
stances where  not  all  the  people,  but  only  a  minority  of 
them,  exercised  the  power  of  controlling  the  government. 
In  England  previous  to  the  great  reform  and  exten- 
sion of  the  franchise  in  1832,  tlie  power  of  government 
was  vested  in  the  hands  of  a  small  minority  of  the 
whole  nation.  Since,  however,  the  body  of  the  people 
followed  in  the  main  the  political  lead  thus  given,  and 
looked  to  the  minority  in  question  (the  voting  class) 
to  protect  them  from  possible  tyranny  of  the  crown, 
we  may  speak  of  this  state  of  things  as  constitutional 

1  An  excellent  analysis  of  the  different  political  sig^iifications  of 
the  term  is  piven  in  Professor  Seeley's  Introduction  to  Political  Science, 
Lectures  V,  VI. 


THE  LIBERTY   OF  THE  INDIVIDUAL  77 

liberty.  Strictly,  however,  the  term  ought  only  to  be 
used  of  a  government  in  which  the  people  rule.  For 
if  the  name  be  applied  to  a  system  in  which  the  gov- 
ernment is  responsible  only  to  a  minority  of  the  nation, 
it  implies  an  unwarrantable  disregard  of  the  political 
status  of  the  majority. 

Professor  Burgess,*  followed  by  other  American 
writers,  sees  fit  to  use  the  term  civil  liberty  in  a  sense 
different  from  that  explained  above.  Burgess  claims 
that  most  European  writers  have  unduly  confused  the 
idea  of  the  state  with  that  of  the  government ;  the 
state  ought  to  mean  that  fundamental  organization  of 
the  community  by  whose  authority  the  government  is 
created,  and  the  power  of  the  government  limited. 
The  government  should  mean  only  the  ordinary  mech- 
anism of  administration.^  It  is  in  this  sense  conceiv- 
able that  the  state  may  set  a  limit  to  the  action  of  the 
government  as  against  the  individual,  and  gi^ant  to 
the  latter  certain  privileges  or  immunities  with  which 
the  government  may  not  interfere.  These  immunities 
constitute  the  domain  of  civil  liberty.  In  the  United 
States,  according  to  this  view,  the  organization  of  the 
state  is  found  in  the  body  that  makes  and  amends 
the  Constitution.  By  the  authority  of  this  body  it  is 
forbidden  to  the  ordinary  government  of  the  country 
(President,  Congress,  etc.)  to  interfere  with  the  re- 
ligion or  the  free  speech  of  the  individual;  the  govern- 
ment may  not  impose  an  export  duty,  may  not  make 
a  law  impairing  the  obligation  of  contracts,  or  confer 

^  Political  Science  and  Constitutional  Law,  vol.  i. 
2  See  above,  chapter  i.    Professor  Burgess's  distinction  between  the 
government  and  the  state  is  not  here  accepted  as  valid. 


78  THE   NATURE   OF  THE   STATE 

a  title  of  nobility.^  The  civil  liberty  of  tlie  individual 
is  therefore  defined  by  Burgess  to  mean  all  those  rights 
thus  granted  to  the  individual  by  the  constitution- 
making  power.  Were  all  governments  of  the  same 
form  as  that  of  the  United  States  this  aj)plication  of 
the  term  civil  liberty  would  be  felicitous  and  useful. 
But  as  applied  to  the  governments  of  England,  France, 
Italy,  and  many  other  countries  a  difficulty  occurs.  In 
England  the  Parliament  (king,  lords,  and  commons)  is 
supreme.  It  is  therefore  (according  to  this  interpreta- 
tion) the  state.  It  is  also  the  government,  ordinary  and 
regular.  It  is  hence  not  possible  that  it  can  forbid  any- 
thing to  itself  by  its  own  authority,  or  guarantee  the  in- 
dividual the  possession  of  rights  which  it  cannot  legally 
set  aside.  The  conclusion  is  obvious.  There  is  no  civil 
liberty  in  the  constitutional  law  in  Great  Britain.  To 
assert  this  is  properly  equivalent  to  asserting  that 
there  can  be  no  civil  liberty  at  all  under  the  British 
government.  "  I  pass  over  the  subject  of  civil  liberty 
in  the  constitution  of  England  and  France  for  the 
simple  and  entirely  convincing  reason  that  there  is 
none  in  either."  ^  This  being  so,  it  may  well  be  doubted 
whether  the  term  is  appropriately  used  in  the  signifi- 
cance thus  attached  to  it.  A  definition  according  to 
which  the  citizens  of  Hayti  enjoy  a  wide  measure  of 

■*  Constitution  of  the  United  States. 

'^  Burgess,  Political  Science  and  Constitutional  Law,  vol.  i,  part  ii, 
bk.  ii,  chap.  iv.  Burg-ess  does  not  deny  that  there  is  civil  liberty  in 
Great  Britain,  but  says  that  it  is  created  by  statute,  not  by  the  consti- 
tution. But  his  position  seems  inconsistent.  For  he  says  (vol.  i,  p. 
174)  that  individual  liberty  "is  a  domain  in  which  the  government 
shall  not  penetrate."  But  in  discussing  civil  liberty  under  the  British 
and  French  systems,  he  asserts  (vol.  i,  p.  262),  "  Every  particle  of  civil 
liberty  in  both  sj'stems  is  at  all  times  at  the  mercy  of  the  government." 


THE  LIBERTY   OF   THE  INDIVIDUAL  79 

civil  liberty,  while  those  of  Great  Britain  and.  its  colo- 
nies possess  none  at  all,  becomes  a  little  absurd. 

3.  Organic  Theory  of  the  State.  The  question  of 
liberty  and  sovereignty  as  hitherto  discussed  has  been 
purely  one  of  legal  relations.  It  forms,  however,  only 
a  part  of  the  wider  question  of  the  general  relation  of 
the  individual  to  the  state,  or  to  society  at  large.  The 
view  that  is  to  be  taken  of  the  position  in  which  the 
individual  stands  towards  the  state  is  of  the  highest 
importance,  for  on  it  will  depend  our  decision  as  to  the 
proper  province  of  the  action  of  government.  In  what 
has  been  said  in  the  present  chapter  and  in  connection 
with  the  statement  and  criticism  of  the  doctrine  of  the 
social  contract,  reference  has  been  made  to  two  con- 
flicting points  of  view.  In  the  one  instance  the  indi- 
vidual is  looked  upon  as  a  separate  self-contained  unit 
who  joins  with  his  fellows  for  the  formation  of  civil 
society  in  a  purely  mechanical  fashion.  The  state  from 
this  point  of  view  becomes  merely  a  numerical  aggre- 
gate. It  is  not  justified  in  interfering  with  the  indi- 
vidual further  than  to  prevent  his  interference  with 
any  one  else.  Such  a  theory  of  social  relations  is  often 
spoken  of  as  an  arithmetical,  mechanical,  or  monad- 
istic  theory  of  society.^  We  have  already  seen  fit 
in  dealing  with  the  social  contract  to  reject  such  a 
view  of  the  relative  status  of  the  individual  and  the 
state. 

As  opposed  to  this  we  have  at  the  other  end  of  the 
scale  what  has  already  been  referred  to  as  the  "  organic 
theory  of  society,"  or  of  the  state.  This  theoi-y,  either 
entire  or  in  partial  form,  occupies  a  large  place  in  the 

^  See  J.  S.  Mackenzie,  Introduction  to  Social  Philosophy,  chap.  iii. 


80       THE  NATURE  OF  THE  STATE 

economic,  political,  and  social  philosophy  of  our  time, 
and  merits,  therefore,  a  careful  examination.  What- 
ever be  the  earlier  origins  ^  to  which  it  may  be  traced, 
it  assumed  a  great  prominence  at  the  hands  of  various 
German  writers  of  the  middle  of  the  nineteenth  cen- 
tury, who  advanced  it  in  opposition  to  the  more  me- 
chanical view  of  society  held  by  the  dominant  individ- 
ualist school  in  economics  and  political  philosophy. 
The  central  idea  of  the  theory  is  to  endeavor  to  set 
aside  the  contrast  between  the  individual  and  the  state 
by  amalgamating  them  into  one.  It  discards  all  such 
ideas  as  mutual  contract,  reciprocal  service,  infrangible 
immunities,  etc.  It  views  the  state  and  the  individual 
as  part  and  parcel  of  the  same  thing,  both  of  them 
being  included  in  what  may  be  called  the  social  organ- 
ism. As  is  the  relation  of  the  hand  to  the  body,  or  the 
leaf  to  the  tree,  so  is  the  relation  of  man  to  society. 
He  exists  in  it,  and  it  in  him.  As  it  is  impossible  to 
consider  that  the  hand  has  a  separate  existence  from 
that  of  the  body,  so  is  it  impossible  to  divorce  the 
individual  from  society.  The  antithesis,  therefore,  be- 
tween the  single  citizen  and  the  collective  state  rests 
upon  a  false  basis,  and  implies  a  view  of  society  that  is 
contrary  to  fact. 

4.    Criticism.    In  criticising  this  theory  it  is  first 

^  The  philosophy  of  the  Greeks  may  be  said  to  afford  the  first  hegfin- 
nings  of  the  oi<;auic  tlieory.  "  jNIan,"  says  Aristotle,  "  is  a  political  ani- 
mal," and  the  whole  tendency  of  Greek  political  thought  was  to  insist 
on  the  subordination  of  the  individual  to  the  state.  But  the  el.aboration 
of  the  theory  and  its  express  application  to  the  problem  of  govern- 
mental interference  belongs  to  the  nineteenth  century.  Such  a  view 
could  only  attain  its  full  significance  after  the  establishment  of  the 
evolutionary  theory  of  the  biological  world. 


THE   LIBERTY  OF  THE   INDIVIDUAL  81 

necessary  to  know  to  what  extent  the  statement  that 
society  is  an  organism  is  intended  to  be  true.  Some 
writers  have  advanced  it  merely  as  an  analogy  designed 
to  elucidate  by  a  striking  comparison  the  nature  of 
social  organization.  The  continuity  and  gradual  evo- 
lution of  the  state,  the  insensible  gradations  by  which 
it  develops  in  efficiency  and  complexity,  are  compared 
to  the  growth  of  a  plant  or  animal.  The  different  de- 
partments, councils,  officials,  etc.,  which  are  found  in 
a  modern  administration,  present  in  their  specialized 
functions  and  adapted  capabilities  an  analogy  with  the 
special  organs  of  a  living  structure.  The  single  individ- 
ual, without  whom  the  state  cannot  exist,  and  whose 
activities  presuppose  the  existence  of  the  state,  sug- 
gests the  germ  cell  which  forms  the  basis  of  a  living 
organism.  Viewed  in  this  light,  the  organic  theory  has 
met  with  a  very  wide  acceptance,  especially  by  the 
modern  German  school  of  writers  on  the  social  sciences. 
It  is  indeed  difficult  to  quarrel  with  this  or  any  other 
contention  as  long  as  it  remains  merely  in  the  form  of 
analogy.  When  we  say  that  society  is  like  an  organism 
we  are  expressing  an  opinion  of  a  very  indefinite  char- 
acter. The  point  of  the  statement  will  dej)end  on  the 
amount  of  the  likeness.  In  one  sense  every  man  is  like 
every  other ;  in  another  sense  each  man  has  a  different 
appearance.  To  say,  therefore,  that  there  are  certain 
things  about  society  which  suggest  an  organism,  is  to 
say  what  is  hardly  open  to  refutation.  The  real  point 
of  controversy  comes  in  when  we  consider  how  far  our 
opinions  on  social  and  political  problems  are  to  be  af- 
fected by  this  view.  Is  it  to  be  looked  on  merely  as  an 
interesting  and  ingenious  comparison,  or  are  we  to  see 


82  THE   NATURE  OF  THE   STATE 

in  it  a  profound  truth  in  the  light  of  which  the  actual 
solution  of  social  difficulties  is  to  be  sought  ?  ^ 

It  may  perhaps  be  reasonably  claimed  that  the  im- 
portance attached  to  this  view  by  many  sociological 
writers  is  altogether  exaggerated.  It  is  hard  to  see  in 
what  way  it  offers  a  practical  programme  or  line  of 
direction  in  dealing  with  applied  politics.  The  indi- 
vidualistic theory,  dictating  the  abstinence  of  the  state 
from  all  positive  interference,  had  at  least  the  merit 
of  indicating  a  recognizable  course  of  conduct.  The 
utilitarian  theory,  propounding  the  greatest  good  of 
the  greatest  number  as  the  goal  of  social  effort,  offers 
also  an  objective  point  theoretically  distinct,  however 
much  its  special  applications  might  in  practice  be  open 
to  dispute.  But  the  organic  theory,  in  telling  us  that 
we  and  our  institutions  grow  and  are  not  made,  hardly 
offers  a  practical  guide  to  political  conduct.  It  is  im- 
possible that  we  can  sit  politically  passive  and  watch 
ourselves  grow,  and  it  is  inconceivable  that  the  theory 
ought  to  be  interpreted  to  obstruct  all  deliberate  vo- 
litional effort,  and  to  substitute  for  it  a  self-contem- 
plating passivity.  To  regard  the  organic  theory  of 
society  as  offering  a  definite  solution  of  any  social 
problem  seems  erroneous.  The  true  purpose  that  it  has 
served  has  been  in  helping  to  destroy  the  once  preva- 
lent conception  that  individual  liberty  must  a  priori 
be  a  good  thing,  and  needs  not  to  be  considered  on  its 
merits. 

5.   Elaborate  Analogies  of  Spencer,  Schaffle, 

^  The  latter  is  the  opinion  expressed  by  Mr.  M'Kechnie  in  his  State 
and  Individual,  part  i,  chap.  i.  "  This  theory,"  he  writes,  "  is  not  only 
correct,  but  contains  the  germ  of  the  whole  trutli  of  Political  Philoso- 
phy." 


THE  LIBERTY  OF  THE  INDIVIDUAL  83 

etc.;  the  Personality  of  the  State.  By  some 
authorities  the  organic  theory  has  been  supported  not 
as  a  useful  analogy,  but  as  a  literal  truth.  To  establish 
this  fact  they  have  analyzed  in  great  detail  the  indus- 
trial and  political  structure  of  society,  and  shown  that 
it  conforms  to  the  general  organic  type,  and  is  there- 
fore literally  and  actually  an  organism.  Of  such  an- 
alysis, that  offered  by  Herbert  Spencer  is  the  most 
familiar.  Spencer,^  it  is  true,  does  not  entirely  identify 
the  social  organism  with  the  living  organism.  Society, 
he  says,  is  an  organism,  but  "  it  is  not  comparable  to 
any  particular  type  of  individual  organism,  animal  or 
vegetable."  The  analogy  that  he  institutes,  however,  is 
carried  into  such  detail  as  to  stop  little  short  of  identi- 
fication. The  first  point  of  resemblance  is  found  in  the 
fact  that  societies,  like  living  bodies,  begin  as  germs 
(small  wandering  hordes  of  people),  and  increase  con- 
tinually in  mass  and  in  complexity  of  structure.  In 
both  cases  this  increase  in  mass  is  effected  either  by 
simple  multiplication  of  the  units  or  by  union  of  groups. 
Thus  the  organic  integration  of  plants  of  the  lowest 
order,  which  increase  into  a  larger  form  by  "  clustering  " 
into  one,  is  compared  to  the  amalgamation  of  primitive 
tribes.  Multiplication  and  fusion  of  units  may,  in  both 
animal  and  social  growths,  proceed  simultaneously.  The 
progressive  complexity  of  structure  is  shown  in  the 
development  of  society,  as  in  the  development  of  plants 
and  animals,  by  constant  differentiation  of  special  organs 
for  the  performance  of  special  functions.  In  a  rudi- 
mentary animal  organism  the  same  apparatus  acts  in  an 
imperfect  way  as  stomach  and  mouth,  or  as  stomach 

^  See  Princijiles  of  Sociology,  part  ii. 


84  THE   NATURE   OF  THE   STATE 

and  skin.  Gradually  each  of  these  separate  organs  is 
evolved  and  restricted  to  its  own  function.  An  original 
spinal  axis  of  an  elementary  character  becomes  sepa- 
rated into  its  vertebrated  parts,  the  head  differentiated 
from  the  backbone,  and  the  brain  from  the  skull.  So 
in  society,  separate  classes  —  kings,  priests,  medicine 
men  —  are  differentiated  from  the  original  mass,  and 
assigned  to  their  peculiar  activities.  The  division  of 
labor  in  the  society,  as  in  the  animal,  makes  it  a  living 
whole.  The  industrial  division  of  occupation  among 
weavers,  iron-workers,  food-growers,  etc.,  corresponds 
to  the  independent  functions  of  stomach,  heart,  and 
lungs.  The  original  structures  are  found,  on  examina- 
tion, to  closely  resemble  the  bodily  structures.  Spencer 
speaks  of  a  manufacturing  district  as  "  secreting  "  cer- 
tain goods  ;  a  seaport  town  "  discharges  and  absorbs  " 
them,  performing  a  duty  like  that  of  the  pores  of  the 
skin.  Society  has  its  "  sustaining  system,"  or  parts 
devoted  to  alimentation.  These  are  the  great  produc- 
tive industries,  —  the  agricultural  areas,  the  "  iron- 
secreting  "  districts,  etc.  There  is  also  the  distributing 
system,  —  the  roads,  railroads,  and  canals,  which  serve 
as  the  blood-vessels  of  the  social  body.  The  press,  the 
telegraph,  telephone,  etc.,  serve  as  stimuli,  by  which 
the  nerve  centres  are  moved  to  action.  Finally,  there 
is  in  society,  as  in  the  living  organism,  the  regulating 
system,  —  " nervo-motor "  in  the  one,  "governmental- 
military  "  in  the  other.  These  are  evolved  by  the 
struggle  for  survival  against  the  rapacity  of  other 
organisms.  "  The  successive  improvement  of  the  organs 
of  sense  and  motion  have  indirectly  resulted  from  the 
antagonisms  and  competition  of  organisms  with  one 


THE   LIBERTY  OF  THE   INDIVIDUAL  85 

another."  The  wars  between  societies  originate  gov- 
ernmental structures,  and  are  causes  of  all  such  im- 
provements in  these  structures  as  increase  the  efficiency 
of  corporate  action  against  environing  societies.  The 
special  application  of  this  last  comparison  lies  in  the 
argument  advanced  by  Spencer  that  the  govermental 
organ,  like  every  other,  should  confine  itself  to  the 
particular  functions  for  which  it  has  been  evolved,  — 
protection  and  defense,  —  and  should  abstain  from 
wider  action  in  the  field  of  positive  beneficence. 

As  already  said,  Spencer  does  not  completely  identify 
the  social  organism  with  the  living  plant  or  animal. 
The  chief  difference  is  found  in  the  fact  that  while  the 
parts  of  an  animal  form  a  concrete  whole,  society  is 
"  discrete ; "  in  other  words,  "  while  the  living  units 
composing  the  one  are  bound  together  in  close  contact, 
the  living  units  composing  the  other  are  free  and  not 
in  contact,  and  are  more  or  less  widely  dispersed." 
Hence  the  political  or  social  body  is  sensitive  only  in 
its  units,  whereas  the  animal  organism  has  a  "  senso- 
rium"  in  which  its  sentient  existence  is  centred.  Even 
this  distinction  Spencer  is  unwilling  to  unduly  em- 
phasize. The  units  of  society,  though  not  in  physical 
contact,  affect  one  another  through  the  influence  of 
language  spoken  or  written ;  there  is  thus  a  psycho- 
logical continuity  where  physical  coherence  is  lacking. 

A  still  more  complete  presentation  of  the  social 
organism  is  offered  by  the  late  Albert  Schiiffle,  the  dis- 
tinguished Austrian  statesman  and  economist,  in  his 
"  Structure  and  Life  of  the  Social  Body."  Here  the 
comparison  of  social  with  animal  forms  is  carried  to  an 
extreme  point,  stopping  little  short  of  complete  identi- 


86  THE  NATURE  OF  THE  STATE 

fication,  thougli  tlie  author  professes  to  be  mindful  of 
the  differences  existing  between  the  two,  and  avoids 
the  explicit  use  of  the  term  organic.  Schiiffle  speaks 
of  the  "morphology"  and  the  "physiology"  of  society, 
the  "  social  limbs  of  technique,"  etc.  If  the  whole  of 
his  vast  work  is  to  be  viewed  as  an  analogy,  it  reaches 
the  point  where  such  elaborate  comparison  ceases  to  be 
either  of  interest  or  profit.  Others  of  the  modern  Con- 
tinental writers  —  for  instance,  Gumplowitz,  the  Polish 
publicist,  in  his  "  Sociological  Idea  of  the  State " 
(1892)  —  flatly  and  absolutely  hold  that  the  organic 
nature  of  the  state  is  to  be  considered  not  as  an  illus- 
tration but  as  a  literal  fact.  Of  a  still  more  extreme 
character  is  the  contention  of  several  of  the  German 
theorists  that  the  state  is  a  person.  The  claim  that  the 
state,  or,  if  one  will,  the  government,  is  a  person  in  a 
purely  legal  sense  of  the  term  is  what  no  one  will 
deny.  The  government  being  an  owner  of  property,  a 
collector  of  taxes,  a  borrower  of  money,  etc.,  can  un- 
doubtedly be  clothed  with  an  abstract  personality.  But 
the  writers  in  question  —  Gierke,  for  example,  in  his 
"Fundamental  Concepts  of  Public  Law"  —  go  beyond 
this.  With  them  the  personality  of  the  state  is  not 
abstract  but  actual ;  out  of  the  "  social  side "  of  each 
individual  composing  the  state  is  compounded  a  new 
person,  a  totality  of  purpose  which  is  the  true  constitu- 
ent element  of  personality.  Bluntschli  even  determines 
the  sex,  maintaining  that  the  state  is  male  and  the 
church  female.^ 

6.   Criticism.    This  extreme  theory  of  the  personal- 

^  On  the  subject  of  the  personality  of  the  state  consult  also  Jellinek, 

Allgemeine  Staatslehre  (1900). 


THE  LIBERTY   OF  THE  INDIVIDUAL  87 

ity  of  the  state  it  is  hardly  necessary  to  criticise.  It 
belongs  to  that  class  of  abstractions  which  may  mean 
much  to  the  nation  that  originates  them,  but  which 
seem  to  dissolve  in  passing  through  the  prism  of  Anglo- 
Saxon  literalism.  The  general  organic  theory  merits, 
however,  a  special  treatment.^  Interesting  as  is  the 
parallel  between  the  collective  aspect  of  humanity  and 
the  life  of  a  single  organic  unit,  the  differences  between 
the  two  appear  on  impartial  examination  so  great  that 
the  analogy  cannot  be  looked  on  as  a  true  guide  to 
social  policy,  or  a  true  exj^ression  of  man's  relations  to 
his  environment.  The  difference  that  Spencer  masks 
under  the  cognate  terms  "concrete"  and  "discrete,"  is 
in  reality  of  a  fundamental  character.  In  neither  the 
physical  nor  the  metaphysical  sense  of  the  terms  is  it 
true  that  the  individual  is  literally  a  part  of  society. 
The  existence  of  each  human  being  is  a  fact  apart.  The 
"  existence  "  of  society  is  only  an  abstraction.  Society 
has  no  single  brain,  no  "  social  sensorium ; "  it  has  no 
single  physical  life.  This  distinction  is  therefore  more 
than  a  mere  divergence  of  special  qualities.  It  is  es- 
sential and  absolute,  —  it  is  the  difference  between 
"  black  "  and  "  white,"  and  between  "  yes  "  and  "  no." 
Even  if  we  accept  the  analogy  as  only  an  analogy,  it 
does  not  follow  that  it  is  always  a  proper  guide  for 
our  social  conduct.  Too  great  an  amalgamation  of  the 
individual  and  the  state  is  as  dangerous  an  ideal  as  a 
too  great  emancipation  of  the  individual  will.  Individ- 
ual variation,  individual  "  unlikeness,"  and,  in  a  sense, 

1  For  criticism  of  the  organic  theory  see  J.  S.  Mackenzie,  Introduction 
to  Social  Philosophy,  chap,  iii,  and  W.  W.  Willoughby,  The  Nature  of 
the  State,  chap.  iii. 


88  THE  NATURE  OF  THE  STATE 

individual  isolation  of  effort  is  as  necessary  for  the 
welfare  of  mankind  as  collective  activity  and  mutual 
support.  The  organic  theory  of  society,  deprived  of  its 
ingenious  biological  setting,  presents  only  one  phase  of 
the  truth,  erring  in  one  direction  as  much  as  extreme 
individualism  has  erred  in  the  other. 

READINGS  SUGGESTED 

Seeley,  Sir  J.  R.,  Introduction  to  Political  Science  (1896),  Lec- 
tures V,  VI. 

M'Kechnie,  W.  S.,  The  State  and  the  Individual  (1896),  chap. 
xxii. 

Giddings,  F.  H.,  Principles  of  Sociology  (1899),  bk.  i,  chap.  iv. 

FURTHER  AUTHORITIES 

Ritchie,  D.  G.,  Natural  Rights  (1895). 

Lieber,  F.,  Civil  Liberty  (1852). 

Mill,  J.  S.,  Liberty  (1859). 

Burgess,  J.  W.,  Political  Science  and  Constitutional  Law  (1898), 

vol.  i. 
Mackenzie,  J.  S.,  Introduction  to  Social  Philosophy  (2d  edition, 

1895). 
Spencer,  H.,   Principles  of  Sociology,  vol.  i,  part  ii  (3d  edition, 

1893). 
Schaffle,  A.,  Bau  und  Leben  des  Sozialen  Kcirpers  (2d  edition, 

1896). 
Jellinek,  G.,  Das  Recht  des  Moderneu  Staates  (1900). 
Fichte,  J.  G.,  Science  of  Rights  (translation,  1889). 
Woolsey,  T.,  Political  Science,  vol.  i  (1878). 


CHAPTER  VI 

RELATION   OF   STATES  TO   ONE   ANOTHER 

1.  External  Aspect  of  the  State ;  Regulation  of  its  Conduct  towards 
other  States.  2.  Evolution  of  International  Relations :  First,  Sec- 
ond, and  Third  Periods.  8.  Scope  and  Content  of  International  Law. 
4.  Propriety  of  the  Term.   5.  International  Arbitration. 

1.  External  Aspect  of  the  State ;  Regulation  of 
its  Conduct  to-wards  Other  States.  Viewed  in  a 
purely  theoretical  light,  every  state  is  an  absolutely 
independent  unit.  Its  sovereignty  is  unlimited,  and  it 
renders  political  obedience  to  no  outside  authority ; 
it  has  no  organized  coercive  relation  with  any  other 
political  body.  Such  theoretical  isolation  is  the  prime 
condition  of  its  existence  as  a  state,  and  its  political 
independence  is  one  of  its  essential  attributes.  This  is 
what  Hobbes  meant  in  saying  that,  in  regard  to  one 
another,  separate  states  are  to  be  viewed  as  in  a  "  state 
of  nature."  Yet  while  this  is  true  in  a  purely  formal 
and  legal  sense,  it  is  nevertheless  the  case  that  in  actual 
fact  different  states  stand  in  close  contact  with  one 
another  in  a  variety  of  ways.  The  mutual  intercourse 
and  communication  of  their  citizens,  trade,  commerce, 
and  various  common  interests,  bring  separate  states  into 
permanent  relations  demanding  some  sort  of  regulation. 
The  fact  that  in  the  civilized  world  the  citizens  of  one 
country  very  lai'gely  share  in  the  thought,  the  art,  and 
the  literature  of  neighboring  communities,  runs  coun- 
ter to  the  idea  of  political  exclusiveness.    The  politi- 


90  THE   NATURE   OF   THE   STATE 

cal  as  well  as  the  social  and  cultural  institutions  of  any 
modern  state  are  largely  affected  by  its  contact  with 
other  states.  Especially  is  this  the  case  where  the  citi- 
zens of  countries  politically  separate  speak  a  common 
language,  and  where  a  kindred  descent  enables  them 
to  look  back  to  the  same  history  and  traditions  in  the 
past. 

It  is,  therefore,  easily  understood  that  in  the  evolu- 
tion of  their  dealings  with  one  another  in  relation  to 
diplomacy  and  civic  intercourse  the  action  of  modern 
states  shows  an  increasing  tendency  to  conform  to  a 
generally  recognized  usage.  Even  the  conduct  of  war 
is  adapting  itself  to  a  code  of  regulations,  designed  to 
mitigate  as  far  as  may  be  the  suffering  it  involves, 
and  to  reduce  to  a  minimum  the  injury  it  occasions 
to  the  commerce  of  the  world.  These  rules  and  usages 
which  regulate  the  peaceful  intercourse  of  independent 
nations,  and  indicate  a  recognized  method  of  warfare 
adopted  by  general  consent,  are  not  to  be  regarded  as 
fixed  and  permanent.  They  are  rather  in  a  formative 
and  imperfect  stage  of  development.  But  the  study 
of  modern  political  institutions  is  not  complete  with- 
out an  analysis  of  the  nature  of  the  bond  thus  created 
between  different  states,  the  extent  of  its  obligation, 
and  its  especial  significance  for  the  future.  Politi- 
cal science  must  take  account  not  only  of  the  internal 
organization  of  the  state,  but  of  its  external  relations 
in  so  far  as  they  assume  a  regular  and  definite  char- 
acter. 

Imperfect  as  they  are,  the  "  rules  which^  determine 
the  conduct  of  the  general  body  of  civilized  states  in 
their  dealings  with  one  another  are  termed  Interna- 


RELATION   OF   STATES   TO   ONE   ANOTHER      91 

tional  Law."  *  The  question  at  once  arises  whether  the 
existence  of  such  regulations  can  be  harmonized  with 
the  sovereignty  of  the  individual  state.  As  we  have 
understood  it,  the  term  "  law "  is  properly  to  be  re- 
stricted to  the  command,  express  or  tacit,  of  a  supreme 
legal  authority ;  we  have  seen  that  it  is  probably  inex- 
pedient to  use  it  in  reference  to  customary  observances 
not  deliberately  controllable  by  a  political  superior.  In 
other  words  law  has  been  restricted  to  mean  the  com- 
mand of  the  state,  the  two  terms  being  correlative  to 
one  another.  Such  being  the  case,  it  is  now  to  be  asked 
whether  the  term  international  law  is  properly  applied, 
and  whether  the  sanction  or  compelling  force  behind 
its  rules  and  regulations  is  sufficient  to  entitle  it  to  be 
considered  as  really  law.  To  undertake  this  inquiry  it 
will  be  necessary  first  to  pass  very  briefly  in  review 
the  evolution  of  international  relations,  and  the  inter- 
pretation put  upon  them  in  political  theory,  and  in  the 
second  place  to  indicate  the  scope  and  extent  of  the 
rules  of  international  law  as  now  existing.  By  doing 
this,  its  true  character,  both  as  it  is  and  as  it  may 
become,  will  be  set  in  a  clearer  light. 

2.  Evolution  of  International  Relations :  First, 
Second,  and  Third  Periods.  The  evolution  of  in- 
ternational relations  may  be  divided  into  three  great 
stages.  The  first  embraces  the  period  from  the  origins 
of  European  civilization  till  the  fall  of  the  Roman  Em- 
pire, the  second  extends  from  that  date  until  the  peace  of 
Westphalia  (1648),  and  the  third  period  from  the  peace 

1  This  is  the  definition  given  by  Professor  T.  J.  Lawrence  (Interna- 
tional Law,  chap.  i).  In  attempting  to  define  international  law  one  meets 
at  once  the  difficulty  as  to  the  extent  of  its  sanction. 


92  THE   NATURE   OF  THE  STATE 

of  Westphalia  until  the  present  day.^  During  the  first 
period  we  find  no  recognition  of  international  obliga- 
tions as  such.  The  claims  and  duties  associated  with 
kinship  were  recognized  as  a  bond  between  communi- 
ties of  a  common  descent  and  tongue.  But  between 
tribes  and  nations  alien  to  one  another  there  was  no 
recognized  system  of  peaceful  intercourse  or  acknow- 
ledged principles  of  legitimate  warfare.  The  tribes  of 
the  Israelites  observed  in  the  dealings  with  one  another 
the  bond  of  common  birth ;  they  viewed  themselves  as 
forming  a  political  system,  each  member  of  which  had 
certain  indefinite  obligations  towards  the  others,  while 
all  of  them  were  disconnected  from  the  outer  world  of 
Gentiles.  In  the  same  way  the  city  states  of  ancient 
Greece,  though  jealously  guarding  their  political  auto- 
nomy, felt  themselves  bound  by  the  ties  of  race  to  their 
fellow  Greeks,  a  relation  which  found  its  expression 
in  the  Amphiktyonic  Council,  the  federations  of  cities, 
and  the  observance  of  a  rudimentary  code  of  warfare. 
But  towards  the  outside  world  —  the  barbarians,  as  the 
Greeks  call  them  —  no  such  obligations  existed.  In  so 
far  as  the  Greeks  recognized  a  system  of  interstate  re- 
lations, it  was  applicable  only  to  the  Hellenic  people. 
The  Romans,  also,  pi'e\'ious  to  their  imperial  aspirations 
of  universal  dominion,  occupied  the  same  theoretically 
isolated  position.  Rome,  it  is  true,  during  the  repub- 
lican period  of  her  history,  entered  into  treaties  with 
the  Samnites  and  other  Italian  tribes.  They  had  also 
certain  systematic  observances  which  bear  some  re- 
semblance to  a  code  of  international  conduct.    But  the 

^  Division  given  by  Lawrence,  International  Law.  See  also  Walker, 
History  of  the  Law  of  Nations,  Ilalleck,  Liternational  Law,  chap.  i. 


RELATION   OF   STATES   TO   ONE   ANOTHER      93 

Jus  Feciale  was  merely  a  system  of  ceremonial  acts 
which  constituted  the  formalities  thought  necessary  for 
a  declaration  of  war,  the  conclusion  of  a  treaty,  etc. 
The  Jus  Gentium  offers  in  its  name  a  confusing  an- 
alogy with  international  law.  Its  precise  nature  is  a 
matter  of  some  controversy,  but  it  is  safe  to  say  that 
it  was  a  code  of  regulations  which  applied  not  to  the 
dealings  of  one  nation  with  another,  but  to  the  dealings 
of  citizens  belonging  to  different  nations.  It  took  its 
name  most  probably  from  the  fact  that  its  rules  were 
presumed  to  consist  of  principles  of  conduct  common 
to  the  laws  of  all  nations.^  But  in  none  of  these  cases 
do  we  get  a  standing  theory  of  international  relations. 
Conduct  towards  outside  nations  might  of  course  be 
influenced  by  motives  of  religion,  of  friendship,  or  of 
expediency,  but  we  find  nothing  approaching  to  a  sys- 
tematized view  of  the  relative  position  occupied  by 
political  societies,  each  possessing  towards  the  rest 
a  definite  status  with  standing  rights  and  standing 
duties. 

In  viewing  the  second  period,  that  following  the  es- 
tablishment of  the  world  empire  of  Home,  we  find  the 
outlook  entirely  changed.  The  Romans  had  made 
themselves  masters  of  the  known  world  and  from  the 
pride  of  their  exalted  position  originated  a  new  theory 
of  political  relations.  The  universal  sovereignty  of  a 
single  power  became  the  dominant  idea,  the  theoretical 
ground  plan  of  political  institutions.  The  idea  of  a  com- 
mon superior  holding  the  supremacy  over  all  the  polit- 

^  Yovthe:  jus  gentium,  see  Sir  Henry  Maine's  International  Law;  Hal- 
leck,  International  Law,  chap.  i.  Walker  cites  various  instances  of  the 
term  jus  gentium  used  in  reference  to  international  obligations  and  ap- 
proximating in  its  meaning  to  public  international  law. 


94  THE   NATURE   OF  THE   STATE 

ical  subdivisions  of  the  world  appealed  at  once  by  its 
grandeur  and  its  logical  consistency.  It  endured  in 
theory  long  after  it  had  vanished  in  fact.^  Even  as  a 
fact,  universal  sovereignty,  in  territorial  extent,  if  not 
in  intensity,  seemed  at  the  time  of  Trajan  (a.  D.  98- 
117)  to  reach  its  realization.  The  "  appeal  to  Cajsar  " 
represented  everywhere  the  recourse  to  a  final  author- 
ity. The  actuality  thus  lent  to  the  conception  was 
strengthened  by  the  universality  of  the  Christian  reli- 
gion, which  became  after  the  conversion  of  Constan- 
tine  (a.  d.  312)  the  state  religion  of  the  imperial 
system.  Even  after  the  decline  of  the  imperial  power 
under  the  disruptive  force  of  the  barbarian  invasions, 
the  idea  of  universal  dominion  as  a  necessary  basis  of 
political  life  still  survived.  The  restoration  of  the  Ro- 
man Empire  by  Charlemagne  (a.  D.  800)  served  to  give 
expression  to  this  ideal.  But  in  the  succeeding  centu- 
ries the  conception  of  the  nature  of  the  political  con- 
stitution of  the  universe  underwent  a  vital  change. 
The  church  presented  itself  not  as  a  complementary, 
but  as  a  rival  power.  It  became  necessary  in  theory 
to  divide  universal  dominion  between  the  secular  and 
the  spiritual  sovereigns,  whose  conflicting  pretensions 
helped  to  break  down  the  conception  of  a  single 
final  authority.^  The  feudal  tenure  of  land  gradually 
brought  into  prominence  the  notion  of  territorial  sove- 
reignty (political  power  operative  not  as  over  a  people 

^  Dante,  in  his  De  Monorchia,  arguing  on  the  imperial  side  of  the 
g^eat  controversy  of  the  middle  ages,  undertakes  to  show  the  need  of 
a  single  emperor,  or  sovereign,  with  power  over  all  others. 

'^  For  the  great  raediseval  controversy  between  the  empire  and  the 
papacy  see  Bryce.  Iloly  Roman  Empire,  and  Dunning,  Political  Theories 
Ancient  and  Mediceval. 


RELATION   OF   STATES   TO   ONE  ANOTHER      95 

but  over  a  certain  definite  territory),  on  the  basis  of 
which  arose  the  modern  theory  of  territorially  inde- 
pendent states.  Finally  the  religious  schism  of  the 
Reformation  destroyed  the  idea  of  the  spiritual  unity 
of  mankind.  The  peace  of  Westphalia  (a.  D.  1648), 
which  closed  the  thirty  years'  war  in  central  Europe 
between  the  forces  of  Catholicism  and  Protestantism, 
may  be  taken  as  indicating  the  close  of  the  era  and  the 
final  disappearance  of  the  theory  of  universal  sove- 
reignty. 

During  the  third  period  —  from  1648  until  the  pre- 
sent day  —  the  theory  of  international  relations  has 
been  reconstructed  on  a  new  basis  of  political  independ- 
ence and  territorial  sovereignty.  Modern  international 
law  is  essentially  the  product  of  this  period.  At  the 
opening  of  this  era  the  destruction  of  the  earlier  sys- 
tem and  the  ideas  which  accompanied  it  seemed  to 
have  removed  the  basis  of  international  dealings  and 
to  reduce  the  monarchies  of  Europe  to  the  anarchy  of 
the  state  of  nature.  The  savagery  of  the  European 
wars  of  the  sixteenth  and  seventeenth  centuries  threw 
into  a  strong  light  the  need  for  a  reconstruction  of  the 
theory  of  the  interrelation  of  political  communities, 
now  that  the  idea  of  a  single  common  superior,  either 
temporal  or  spiritual,  was  no  longer  tenable.  It  was 
this  situation  which  called  forth  the  writings  of  the 
great  Dutch  jurist  Hugo  Grotius,  in  which  were  laid  the 
foundations  of  modern  international  law.  Grotius  and 
his  followers  *  found  the  basis  for  their  doctrine  of  in- 

^  The  chief  work  of  Grotius  is  his  De  jure  Belli  ac  Pacts  (1G25). 
PufEendorf  (a  German,  for  some  time  secretary  of  state  at  Stockholm) 
published  his  De  jure  Naturae  et  Gentium  in  1G72 ;  Bynkerschoek's 
Quaestiones  Juris  Publici  appeared  in  1737. 


96  THE   NATURE  OF  THE   STATE 

ternational  obligations  in  the  reconstruction  of  the  idea 
of  a  law  of  nature  long  ago  assumed  by  the  Stoic  philo- 
sophers in  reference  to  the  relations  of  individual  men. 
According  to  this  doctrine  there  was  supposed  to  exist 
in  the  very  nature  of  things  a  code  of  moral  obliga- 
tions of  man  to  man,  which  did  not  depend  for  its 
validity  upon  human  enactment.  It  existed  antecedent 
to  any  system  of  government  and  law  and  could  be  dis- 
covered by  the  natural  light  of  reason.  "  The  princi- 
ples of  natural  law,"  says  Grotius,  "  if  you  attend  to 
them  rightly,  are  in  themselves  patent  and  evident  al- 
most in  the  same  way  as  things  which  are  perceived  by 
the  external  senses."  Such  a  theory  of  natural  law  is 
essentially  fallacious,  and,  as  has  been  already  seen,  it 
disintegrates  upon  a  closer  analysis.^  Nevertheless  it 
served  a  useful  purpose  in  offering  a  possible  starting- 
point  for  constructing  a  system  of  mutual  rights  and 
duties  existing  between  states  without  a  common  supe- 
rior. This  theoretical  assumption  of  a  determinable 
and  universally  binding  law  of  nature,  though  it  affords, 
historically  speaking,  the  starting-point  of  international 
law,  is  by  no  means  its  only  source  and  basis  as  it  now 
exists.  The  major  part  of  it  rests  upon  the  successive 
treaties  and  conventions  by  which  the  great  states  of 
the  world  have  adopted  certain  more  or  less  defined 
principles  to  regulate  their  intercourse  with  one  an- 
other in  peace  and  war.  At  the  beginning  of  the  era 
stands  the  treaty  of  Westphalia,  to  which  all  the 
Continental  sovereigns  of  Europe  (except  the  Pope 
and    the    Sultan)    were    parties,    and    in    which  "  the 

^  In  reference  to  the  history  and  criticism  of  the  theory  of  a  law  of 
nature  Professor  Ritchie's  Natural  liiyhls  may  he  consulted. 


RELATION   OF  STATES   TO   ONE   ANOTHER      97 

representatives  of  civilized  Europe  united  to  formally 
proclaim  the  erection  upon  the  ruins  of  world-sove- 
reignty of  an  international  system  of  states,  unequal 
indeed  in  power,  but  claiming  each  to  be  independent 
and  each  to  exercise  an  exclusive  jurisdiction  within 
definite  territorial  limits."  ^  Of  the  later  treaties 
some  are  mainly  concerned  with  the  allotment  of  ter- 
ritory. Of  this  character  is  the  treaty  of  Utrecht 
(1713),  which  closed  the  long  war  against  Louis  XIV, 
and  the  treaty  of  Paris  (1763)  at  the  end  of  the  Seven 
Years'  War.  In  others  a  fundamental  point  is  the  re- 
cognition of  sovereignty,  as  in  the  treaty  of  Versailles 
(1783),  recognizing  the  independence  of  the  United 
States,  and  in  the  treaty  of  Paris  (1856),  in  which  the 
independence  and  integrity  of  the  Ottoman  Empire 
is  guaranteed  ^  and  whereby  it  is  admitted  "  into  the 
public  law  and  system  of  Europe."  In  other  treaties 
principles  of  conduct  are  adopted  for  future  guidance. 
Thus  at  the  Peace  of  Utrecht  four  of  the  signatory 
powers  accepted  the  principle  that  real  property  con- 
fiscated from  the  subjects  of  an  enemy  should  be  re- 
turned at  the  close  of  the  war.  The  treaty  of  1841  ^  in 
regard  to  the  navigation  of  the  Dardanelles  and  the 
Bosphorus  asserts  the  territorial  jurisdiction  of  a  state 
over  adjacent  waters.  The  international  law  in  respect 
to  neutral  commerce  and  maritime  capture  has  been  the 
subject  of  a  long  series  of  treaty  clauses.  The  princi- 
ple that  "  free  ships  make  free  goods," "*  adopted  (from 

1  Walker,  op,  cit.,  part  i,  chap.  ii. 

2  By  great  Britain,  Austria,  France,  Prussia,  Russia,  and  Sardinia. 

^  Signed  by  Austria,  France,  Great  Britain,  Prussia,  Russia,  and 
Turkey.  See  Alison,  History  of  Europe  from  the  Fall  of  Napoleon,  vol. 
vi,  ch.  xxxiv.  *  See  Lawrence,  q;j.  cit. 


98  THE   NATURE   OF  THE   STATE 

older  precedents)  by  the  United  States  in  the  French 
treaties  of  1778  and  1800,  gradually  gained  a  general 
assent  and  was  recognized  in  185G  in  the  Declaration 
of  Paris,  which  accompanied  the  treaty  already  men- 
tioned. An  equally  important  instance  of  principles 
of  international  conduct  consolidated  by  treaty  is  seen 
in  the  treaty  of  Washington  (1871),  between  the 
United  States  and  Great  Britain  ;  here  the  duty  of  neu- 
tral powers  to  use  a  proper  diligence  in  preventing 
their  territory  from  being  used  as  a  basis  of  operation 
and  equipment  by  a  belligerent  is  accepted  as  a  bind- 
ing rule.^ 

In  addition  to  deliberate  assent  to  treaty  provisions 
nations  may  express  their  adherence  to  rules  of  inter- 
national conduct  in  various  other  ways.  Public  docu- 
ments issued  by  a  state  in  the  form  of  proclamations  or 
manifestoes  to  its  subjects  on  the  outbreak  of  a  war, 
enjoining  their  observance  of  certain  regulations  in  ref- 
erence to  belligerents  and  neutrals  are  of  this  class.  A 
further  source  of  international  law  may  be  found  in  the 
decisions  of  prize  courts,  or  special  tribunals  whose 
business  it  is  to  adjudicate  on  the  legality  of  captures 
made  at  sea  in  time  of  war.  Lastly  may  be  cited  the 
opinions  expressed  by  the  great  jurists  who  have  written 
on  the  subject.  It  goes  without  saying  that  the  mere 
opinion  of  any  individual  writer  has  of  itself  no  bind- 
ing force.  But  since  all  written  laws  and  regulations 
must  be  submitted  to  the  process  of  interpretation,  the 
opinion  of  an  eminent  specialist  as  to  the  proj^er  inter- 
pretation of  a  recognized  formula  is  evidently  of  force, 
and  it  has  always  been  customary  to  cite  as  testimony 

^  Text  of  treatj',  art  G.   See  Annua!  lieijistf.r,  ISTl. 


RELATION  OF   STATES   TO   ONE   ANOTHER      99 

the  opinions  of  international  jurists.  Kent  in  his  "  Com- 
mentaries "  ^  states  the  point  thus :  "  In  cases  where 
the  principal  jurists  agree,  the  presumption  will  be  very 
great  in  favor  of  the  solidity  of  their  maxims ;  and  no 
civilized  nation  that  does  not  arrogantly  set  all  ordi- 
nary law  and  justice  at  defiance  will  venture  to  disre- 
gard the  uniform  sense  of  the  established  writers  on 
international  law." 

3.  Scope  and  Contents  of  International  Law. 
Let  us  now  consider  very  briefly  the  range  of  the  sub- 
ject-matter of  the  international  code  that  has  gi-own  up 
on  this  basis.  It  presumes  as  its  starting-point  a  num- 
ber of  separate,  independent  states,  all  of  which  are 
absolutely  equal  in  rights.  "  No  principle  of  law  is 
more  universally  acknowledged,"  said  Chief-Justice 
Marshall,  "  than  the  perfect  equality  of  nations.  Russia 
and  Geneva  have  equal  rights.  It  results  from  this 
equality  that  no  one  can  rightfully  impose  a  rule  on  an- 
other. Each  legislates  for  itself,  but  its  legislation  can 
operate  on  itself  alone."  Next  to  the  establishment  of 
this  cardinal  2:)roposition  comes  the  discussion  of  the 
territorial  limits  of  jurisdiction,  the  relation  of  the 
sovereign  power  of  a  state  to  the  adjacent  waters  of 
its  coast.  With  this  is  connected  the  question  of  the 
legitimate  means  of  increasing  territorial  jurisdiction, 
and  the  validity  of  claims  arising  from  conquest,  ces- 
sion, original  settlement,  and  so  forth.  Rules  are  also 
laid  down  in  regard  to  the  jurisdiction  and  responsibil- 
ity of  a  state  in  reference  to  its  subjects  while  resident 
abroad.  These  with  other  questions  of  like  charac- 
ter constitute  the  subject-matter  of  international  law 

^  Commentaries,  vol.  i,  p.  19. 


100  THE   NATURE   OF  THE   STATE 

as  applied  to  nations  at  peace  witli  one  another,  — 
the  "  law  of  jjeace,"  as  it  is  called.  The  larger  part 
of  the  code,  however,  is  occupied  with  the  rules  of  war. 
Unfortunately  international  law  is  as  yet  unable  to  offer 
any  binding  system  according  to  which  disputes  may 
be  settled  in  a  peaceful  manner.  It  is  therefore  com- 
pelled to  assume  that  controversies  will  in  the  last 
resort  be  settled  by  force  of  arms.  The  best  that  it 
can  do  in  this  case  is  to  prescribe  certain  regulations 
whereby  the  conduct  of  war  may  be  as  humane  as  pos- 
sible and  may  occasion  the  least  possible  injury  to  the 
property  and  commerce  of  non-combatant  powers.  For 
this  purpose  international  law  defines  the  legitimate 
agents  and  methods  of  war  ;  it  prohibits,  for  example, 
the  use  of  bullets  which  occasion  needless  suffering,  the 
recourse  to  assassination,  poisoning,  etc.  It  indicates  for 
the  use  of  belligerents  a  system  of  communication  with 
one  another  by  flags  of  truce,  passports,  and  safe  con- 
ducts. What  is  still  more  important,  international  law 
contains  an  elaborate  set  of  regulations  in  regard  to  the 
rights  and  obligations  of  neutral  states  in  time  of  war ; 
as  far  as  possible  it  permits  the  trade  of  neutral  ships 
to  and  from  the  ports  of  belligerent  powers  to  continue 
undisturbed.  Only  when  the  trade  in  question  is  with 
ports  actually  blockaded,  or  consists  in  a  commerce 
of  articles  useful  for  purposes  of  war,  does  it  become 
legitimate  for  a  belligerent  power  to  interfere  with  it. 
It  is  in  particular  the  law  of  neutrality  that  has  been 
extensively  developed  in  the  eighteenth  and  nineteenth 
centuries,  and  it  now  constitutes  the  most  important 
part  of  international  law. 

4.  Propriety  of  the  Term.    Taken  altogether,  this 


RELATION   OF  STATES   TO   ONE   ANOTHER    101 

systematized  regulation  of  international  dealings,  both 
in  peace  and  war,  presents  an  imposing  appearance, 
and  the  code  of  rules  which  are  thus  adopted  bears  a 
strong  analogy  to  the  internal  or  municipal  regulation 
of  any  particular  state.  But  it  will  be  clear,  from  what 
has  gone  before,  that  there  is  a  difference  between  the 
two  of  an  important  character.  The  observance  of  the 
municipal  law  is  compulsory  upon  the  individual  citi- 
zen. If  he  attempts  to  violate  it  he  is  restrained,  or  at 
any  rate  punished  after  the  fact  by  the  physical  force 
controlled  by  his  government.  But  there  is  no  such 
definite  obligation  upon  the  individual  state  to  comply 
with  the  princijales  of  international  law.  A  state  which 
undertakes  to  violate  them  may  or  may  not  meet  with 
punishment ;  the  state  upon  whose  rights  (under  inter- 
national law)  another  infringes  may  or  may  not  resort 
to  arms ;  and  even  in  the  event  of  armed  conflict  the 
injured  power  may  meet  with  defeat.  Nor  is  there  any 
single  power,  or  group  of  powers,  whose  business  it  is 
to  enforce  these  principles  of  international  conduct. 
International  law  is  devoid  of  an  authoritative  and 
explicit  "  sanction." 

It  is  on  this  ground  that  are  based  the  criticisms  of 
the  applicability  of  the  term  "  international  law,"  and 
of  the  status  and  character  of  its  rules,  that  have  fre- 
quently been  advanced.  "  I  think,  my  Lords,"  Lord 
Salisbury  once  said  to  the  House  of  Lords,  "  we  axe 
misled  in  this  matter  by  the  facility  with  which  we  use 
the  phrase  international  law.  International  law  has 
not  any  existence  in  the  sense  in  which  the  term  law 
is  usually  understood.  It  depends  generally  upon  the 
prejudices  of  the  writers  of  the  text-books.    It  can  be 


102  THE   NATURE   OF  THE   STATE 

enforced  by  no  tribunal,  and,  therefore,  to  apply  to  it 
the  phrase  Law  is  to  some  extent  misleading."  The 
same  objection  is  urged  in  detail  by  Austin  (the  leader 
of  the  English  analytical  school  of  jurists)  in  his  "  Lec- 
tures on  Jurisprudence."  Since,  according  to  Austin, 
the  essence  of  a  law  lies  in  its  enforcement,  the  name 
"  international  law  "  is  improper ;  the  rules  in  question 
belong  to  the  general  domain  of  what  Austin  calls 
"  positive  morality,"  or  rules  imposed  by  current  opin- 
ion (as  also  are  the  "  laws  "  of  fashion  and  the  "  laws  " 
of  honor),  but  not  coercively  enforced.^  The  regula- 
tions affecting  the  conduct  of  political  states  towards 
each  other  could  only  be  termed  "law"  in  the  Austin- 
ian  sense  if  there  were  in  existence  some  superior  power 
competent  and  willing  to  guarantee  their  enforcement. 
Such  a  power  might  be  imagined  as  existing  in  the 
shape  of  a  general  federation  or  league  of  states  pledged 
to  the  recognition  of  the  international  code  and  united 
to  prohibit  any  breach  of  it.  An  arrangement  of  this 
sort,  as  soon  as  it  became  really  valid  and  permanent, 
would  in  reality  bring  the  associated  nations  into  a 
single  state.  It  might,  therefore,  be  doubted  whether 
even  in  this  event  the  term  "  international  law  "  would 
not  still  be  a  misnomer;  for  "nation"  in  this  sense 
being  a  political  and  not  an  ethnological  term,  the 
union  of  the  "  nations  "  under  a  single  law  would  con- 
stitute them  a  single  state. 

As  against  the  point  of  view  adopted  in  such  criti- 
cisms of  the  propriety  of  the  term  "  international  law," 
various  arguments  may  be  adduced.^   In  the  first  place, 

^  Austin,  Jurisprudence,  Lecture  V. 

^  See  Jellinek,  Recht  des  Modernen  Staates,  pp.  302-307,  337-341. 


RELATION   OF  STATES   TO   ONE   ANOTHER    103 

the  objection  urged  by  many  writers  *  adopting  a  re- 
stricted connotation  of  the  term  "  law "  may  also  be 
applied  here.  We  have  seen  that  law  in  its  strict  sense 
is  not  applicable  to  a  state  of  society  in  which  life  is 
regulated  to  a  large  extent  by  custom,  and  to  which  the 
idea  of  deliberate  enactment  is  altogether  alien.  Nor 
is  the  term  in  its  strict  sense  applicable  to  a  commu- 
nity in  which  imperfect  political  organization  or  chronic 
anarchy  renders  the  general  obedience  to  regulative 
control  spasmodic  and  uncertain.  Many  writers  have 
therefore  preferred  to  expand  the  sense  of  the  term 
"  law  "  in  order  to  make  its  use  extend  to  societies  of 
this  character,  and  recognize  the  existence  of  "  law  in 
the  making,"  as  well  as  of  law.  Viewed  in  this  light, 
international  law  may  be  considered  as  truly  law,  al- 
though as  yet  only  in  an  inchoative  stage ;  it  becomes 
analogous,  as  Sir  Frederick  Pollock  expresses  it,  "  to 
those  customs  and  observances  in  an  imperfectly  or- 
ganized society,  which  have  not  yet  fully  acquired  the 
character  of  law  but  are  on  the  way  to  become  law." 

Even  at  the  present  stage  of  its  development  inter- 
national law  is  not  so  much  devoid  of  a  binding  sanc- 
tion as  might  at  first  appear.  Where  its  precepts  are 
definite  and  their  meaning  obvious,  the  general  pre- 
sumption of  civilized  opinion  —  a  potent  factor  in  the 
world  politics  of  our  day  —  is  against  any  power  acting 
in  violation  of  them.  A  flagrant  disregard  of  inter- 
national law  would  involve  a  decided  loss  of  national 
prestige,  and  offer  a  perhaps  tempting  chance  for  inter- 
vention on  the  part  of  an  outside  power.  The  weak 
part  of  the  system  lies  in  the  fact  that,  in  the  absence 

1  See  Chapter  IV,  above. 


104  THE   NATURE   OF  THE   STATE 

of  authoritative  interpretation,  it  is  possible  for  any 
power  to  put  its  own  construction  on  the  rules  of  inter- 
national law,  and  to  profess  to  assent  to  their  validity 
while,  in  the  eyes  of  others,  violating  their  provisions. 
To  render  complete  a  system  of  international  regula- 
tion, there  would  be  needed  not  only  a  physically 
coercive  power  to  prevent  armed  conflict  between  state 
and  state,  but  also  a  method  for  the  proper  adjustment 
of  controversy.  As  our  municipal  law  necessitates  a 
set  of  courts  for  the  settlement  of  private  disputes,  an 
international  court,  or  group  of  courts,  would  be  needed 
to  replace  the  recourse  to  arms  hitherto  the  final  method 
of  settling  international  quarrels.  In  other  words,  the 
realization  of  international  law  demands  the  establish- 
ment of  compulsory  international  arbitration. 

5.  International  Arbitration.  Arbitration,  or  the 
settlement  of  differences  between  independent  states 
in  accordance  with  the  adjudication  of  a  third  party, 
has,  even  in  the  form  of  a  voluntary  recourse  to  such  a 
decision,  only  assumed  any  considerable  proportions  in 
the  last  half-century ;  of  a  compulsory  system  of  arbi- 
tration we  have  as  yet  only  the  merest  beginnings.  It 
is  of  course  true  that  there  have  always  been  examples 
of  disputes  settled  by  the  mediation  of  a  third  party. 
During  the  mediaeval  and  early  modern  period,  while 
the  theory  of  a  common  superior  still  persisted,  recourse 
was  often  had  to  the  Pope  as  an  arbiter  between  con- 
tending princes.  But  such  arbitration,  except  in  the 
case  of  the  celebrated  award  by  Pope  Alexander  VI, 
dividing  the  New  World  between  Spain  and  Portugal, 
and  in  a  few  lesser  instances,  was  not  applied  to  ques- 
tions of   erreat  mairnitude.    In   the   seventeenth   and 


RELATION   OF   STATES   TO   ONE   ANOTHER     105 

eighteenth  centuries  international  arbitration  is  scarcely 
found,  but  the  circumstances  of  the  nineteenth  have 
especially  favored  the  development  of  the  principle. 
The  increasing  costliness  of  war,  the  dislocation  that  it 
occasions  not  only  to  the  industrial  life  of  the  bellige- 
rents, but  to  that  of  all  countries  associated  with  them, 
the  gi'owing  interdependence  of  general  financial  and 
conmiercial  operations  throughout  the  civilized  world, 
put  a  strong  premium  on  any  method  of  settling  quar- 
rels without  actual  war.  It  is  true,  as  most  writers  on 
the  subject  point  out,  that  as  yet  arbitration  has  not 
been  applied  to  subjects  of  really  vital  importance.  But 
there  have  already  been  instances  of  its  use  in  cases 
in  which,  though  neither  national  existence  nor  honor 
was  at  stake,  pecuniary  and  territorial  claims  of  great 
magnitude  were  involved.  As  between  the  United 
States  and  Great  Britain  arbitration  has  repeatedly 
been  employed,  especially  for  the  rectification  of  bound- 
ary lines,  as  in  1827  in  regard  to  the  northeast  bound- 
ary,^ and  in  1846  for  the  boundaries  on  the  Pacific 
coast.  Still  more  celebrated  is  the  successful  arbitra- 
tion of  the  question  of  the  American  claim  for  damages 
on  account  of  the  devastations  of  the  Alabama  and 
other  Southern  cruisers,  a  matter  which,  by  the  treaty 
of  Washington  (1871),  was  referred  to  a  special  tri- 
bunal, and  ended  in  the  award  of  a  compensation  of 
115,500,000  to  the  United  States.  Arbitration  was 
also  successfully  employed  in  1889  by  the  United 
States,  Great  Britain,  and  Germany  in  reference  to 
Samoa.  There  have  been  in  the  nineteenth  century  over 

1  The  award  made  in  this  case  by  the  king  of  the  Netherlands  was 
rejected  by  the  United  States. 


106  THE  NATURE   OF  THE   STATE 

.a  hundred  important  cases  of  arbitration  effected  by 
special  tribunals  or  specially  appointed  umpires. 

A  further  stage  of  development  is  found  in  the 
attempt  to  constitute  a  permanent  tribunal  for  the  set- 
tling of  international  disputes  and  in  the  conclusion  of 
treaties  to  effect  a  standing  method  of  recourse  to  such 
a  tribunal.  After  various  proposals  from  important 
quarters  in  the  closing  years  of  the  nineteenth  century, 
a  successful  plan  was  put  into  operation  by  a  conven- 
tion signed  at  the  Hague  by  the  Great  Powers  in  con- 
nection with  the  Peace  Conference  of  1899.  Under  this 
agreement  a  permanent  court  of  arbitration  is  estab- 
lished. It  consists  of  a  panel  of  distinguished  jurists, 
of  whom  four  are  nominated  by  each  signatory  power, 
and  from  the  total  number  of  whom  international  dis- 
putants may  select  two  each  to  act  as  arbitrators,  the 
persons  chosen  themselves  adding  an  umpire.  The 
procedure  to  be  adopted  by  the  tribunal  thus  created 
is  also  prescribed.  Although  recourse  to  the  tribunal  at 
the  Hague  is  not  obligatory  upon  the  signatory  powers, 
it  nevertheless  offers  standing  facilities  for  peaceful 
settlement  very  difficult  to  bring  into  being  during  the 
strained  relations  occasioned  by  acute  international 
controversy.  The  work  thus  accomplished  has  been 
further  supplemented  by  special  treaties  among  the 
powers  which  thereby  pledge  themselves  to  adopt  a 
settlement  by  arbitration  where  possible.  In  nearly  all 
cases  the  agreement  to  submit  to  arbitration  matters 
of  controversy  that  may  arise  between  two  states  is 
made  with  certain  reservations.  Questions  which  in- 
volve the  independence,  national  honor,  or  "  vital  in- 
terests "  of  a  state  are  excluded  from  the  operation  of 


RELATION   OF  STATES  TO   ONE   ANOTHER     107 

arbitration.*  Within  the  limits  thus  assigned  treaties 
of  five  years'  duration  for  reference  of  disputes  to  the 
Hague  tribunal  have  been  made,  in  identical  terms,  by 
Great  Britain  with  France,  Italy,  Sjoain,  and  Germany, 
and  by  France  also  with  Italy  and  Spain.  These  trea- 
ties provide  that  "  differences  of  a  judicial  order  or 
relative  to  the  interpretation  of  existing  treaties  be- 
tween the  two  contracting  parties  which  may  arise,  and 
which  it  may  not  have  been  possible  to  settle  by  diplo- 
macy, shall  be  submitted  to  the  permanent  court  estab- 
lished by  the  convention  of  July  29,  1899,  at  the 
Hague."  Various  treaties  of  like  character  are  under 
negotiation.  In  1897  a  treaty  was  made  at  Washington, 
between  the  United  States  and  Great  Britain,  but  was 
not  ratified  by  the  Senate.  It  proposed  to  submit 
pecuniary  claims  and  territorial  questions  to  a  mixed 
tribunal  representing  both  countries.  For  territorial 
controversies  the  court  was  to  be  composed  of  three 
members  of  the  United  States  Supreme  Court  and 
three  from  the  British  Supreme  Court  of  Judicature, 
and  to  act  only  by  a  majority  of  five  to  one.  A  pecu- 
liar importance  attaches  to  the  recent  treaty  between 
Holland  and  Denmark.  Here  all  subjects  of  contro- 
versy, without  any  reservation,  are  referred  to  the 
Hague  tribunal. 

1  It  is  a  condition  of  the  Anglo-French  treaty  of  1904,  and  of  those 
identical  with  it,  that  ' '  neither  the  vital  interests  nor  the  independ- 
ence nor  honor  of  the  two  contracting  states,  nor  the  interests  of  any 
state  other  than  the  two  contracting  states  shall  be  involved."  Such  a 
proviso,  unavoidable  though  it  is  in  practice,  seriously  impairs  the  theo- 
retical completeness  of  the  arrangement,  since  each  state  must  remain 
the  judge  of  its  own  vital  interests,  and  may  therefore  at  any  time 
refuse  to  admit  the  applicability  of  arbitration. 


108  THE   NATURE   OF  THE   STATE 

In  the  light  of  these  recent  developments  the  present 
position  of  international  law  and  international  arbitra- 
tion may  be  considered  as  highly  encovu*aging.  There 
is  undoubtedly  in  all  civilized  countries  a  large  and  a 
growing  force  of  public  opinion  against  war  which 
makes  strongly  in  favor  of  a  more  and  more  definite 
establishment  of  an  international  code  with  properly 
constituted  tribunals  to  pronounce  upon  its  observance. 
In  many  quarters,  it  is  true,  there  is  a  lingering  feeling 
that  war  must  remain  as  the  "natural "  and  honorable 
settlement  of  controversy.  Baronial  war  and  the  pri- 
vate duel  died  hard,  and  undoubtedly  national  war  will 
die  harder  still.  Sir  Kobert  Finlay,  attorney-general 
of  Great  Britain  (1904),  has  recently  written  that 
"  there  are  some  questions  which  no  country  will  con- 
sent to  leave  to  the  judgment  of  any  court  or  arbitra^ 
tion  ;  every  nation  must  be  the  guardian  of  its  own 
honor."  It  is  not  easy  to  see  why  the  same  reasoning 
wordd  not  leave  the  individual  citizen  as  the  guardian 
of  his  own  honor  and  insist  on  the  retention  of  the  duel 
as  the  proper  method  of  settling  private  quarrels.  The 
development  of  international  solidarity  is  slow,  but 
it  may  fairly  be  supposed  that  it  will  be  continuous. 
From  the  courtesies  of  international  custom  we  may 
pass  to  the  indefinitely  binding  code  and  thence  into 
something  approximating  to  an  international  govern- 
ment and  international  state.  Undoubtedly  the  expe- 
rience of  the  world  in  the  creation  of  such  huge  politi- 
cal units  as  the  United  States,  Canada,  Germany,  and 
Australia  by  the  process  of  federation  may  aid  in  cre- 
ating a  still  more  imposing  structure  in  the  "Parlia- 
ment of  man  and  federation  of  the  World." 


RELATION   OF   STATES   TO   ONE  ANOTHER     109 


READINGS  SUGGESTED 

Lawrence,  T.  J.,  Principles  of  International  Law  (1898),  part  i, 

chaps,  i-v. 
Reinscb,  P.  S.,  World  Politics  (1900),  chap.  i. 
Machiavelli,  N.,  The  Prince  (1513). 

FURTHER  AUTHORITIES 

Walker,  T.  A.,  History  of  the  Law  of  Nations,  vol.  i  (1899). 

Halleek,  H.  W.,  International  Law  (1861). 

Maine,  Sir  H.,  International  Law  (4th  edition,  1879). 

Bryce,  J.,  Holy  Roman  Empire  (8th  edition,  1883). 

Dunning,  W.  A.,  History  of  Political  Theories  Ancient  and  Me- 

dijEval  (1902). 
Grotius,  De  Jure  Belli  ac  Pacis  (1625). 
Ritchie,  D.  G.,  Natural  Rights  (1895). 
Austin,  J.,  Lectures  on  Jurisprudence  (4th  edition,  1879). 
Jellinek,  G.,  Das  Recht  des  Modernen  Staates  (1900). 
Dyer,  L.,  Machiavelli  and  the  Modern  State  (1904). 
Woolsey,  T.,  America's  Foreign  Policy  (1898). 


CHAPTER  VII 

THE   FORM   OF  THE   STATE 

1.  The  Classification  of  States  according  to  their  Form ;  Aristotle's 
Divisions.  —  2.  Later  Classifications  ;  Montesquieu,  Rousseau,  Blunt- 
schli,  etc.  —  3.  Practical  Classification  of  Existing  States.  —  4.  The 
Constitution;  Written  and  Unwritten  Constitutions.  —  5.  Origin  of 
Written  Constitutions.  —  6.  The  Distinction  between  States  with 
Written  and  those  with  Unwritten  Constitutions  an  Dlusory  Basis 
of  Division.  —  7.    Scope  of  the  Constitution. — 8.    Amendment. 

1.  The  Classification  of  States  according  to 
their  Form ;  Aristotle's  Divisions.  Although  all 
states  must  possess  the  essential  requisites  of  territory, 
jiopulation,  unity,  and  sovereign  organization,  they  nev- 
ertheless differ  widely  in  respect  to  the  extent  of  their 
territory,  the  number  of  their  population,  and  the  pecu- 
liar nature  of  their  organization.  It  is  natural,  therefore, 
to  attempt  to  group  them  under  some  system  of  or- 
derly classification  ;  indeed,  from  the  time  of  Aristotle 
onwards,  almost  all  writers  on  Political  Science  have 
indicated  some  such  classification.  To  subdivide  states 
according  to  the  extent  of  their  territory,  for  instance, 
into  classes  each  containing  so  many  thousand  square 
miles,  would  obviously  be  of  very  little  significance  ;  to 
divide  them  according  to  population  would  be  equally 
easy  and  valueless.  The  evident  basis  of  classifica- 
tion is  that  of  the  organization  of  the  state ;  in  other 
words,  states  are  divided  according  to  the  structure 
of  their  governments.  Some  writers  have  held  that  we 
ought  not  to  speak  of  a  classification  of  states,  since 


THE  FORM   OF  THE   STATE  111 

all  are  identical  in  their  essential  attributes.  They  pre- 
fer to  classify  instead  the  different  "  forms  of  govern- 
ment "  seen  in  the  state.  The  objection  does  not  seem 
well  taken.  The  differences  in  structure  of  government 
constitute  the  basis  of  classification,  but  we  may  on 
that  basis  either  speak  of  the  various  "  forms  of  gov- 
ernment "  or  "  forms  of  the  state."  * 

The  starting-point  for  all  later  discussion  is  found 
in  the  celebrated  classification  given  by  Aristotle  in 
his  "  Politics."  He  divides  the  forms  of  government  ac- 
cording to  the  number  of  persons  in  whom  the  con- 
trolling power  is  vested.  Where  the  power  is  vested 
in  a  single  person  the  government  is  a  monarchy. 
Power  vested  in  the  hands  of  a  few  constitutes  an 
aristocracy.  Where  the  general  body  of  the  citizens 
rule,  we  have  a  polity.  Thus  far  the  classification  had 
already  been  indicated  by  Herodotus,  but  Aristotle 
proceeds  further  in  distinguishing  between  what  he 
calls  the  "normal"  and  the  "perverted  "  forms  of  the 
state.  The  normal  states  are  those  which  aim  at  the 
good  of  the  community  as  a  whole  ;  the  perverted  forms 
are  those  which  exist  for  the  benefit  of  the  ruler  or  the 
ruling  class.  The  terms  mentioned  above  are  reserved 
for  the  first  class;  thus  a  monarchy  is  a  government 
by  a  king  for  the  good  of  the  whole  community,  while 
an  aristocracy  or  a  polity  is  a  government  by  the  en- 
lightened few  or  by  the  citizens  at  large  for  the  same 
end.    Of  the  perverted  forms  a  tyranny  means  the  gov- 

^  "  It  need  not  be  said  that  there  can  be  no  such  thing  as  a  classifi- 
cation of  states.  In  essence  they  are  all  alike,  —  each  and  all  being' 
distinguished  by  the  same  sovereign  attributes."  W.  W.  Willoughby, 
The  Nature  of  the  State,  chap.  xiii. 


112  THE  NATURE   OF  THE   STATE 

ernment  by  a  tyrant  for  his  own  ends,  an  oligarchy  the 
government  of  the  minority  in  their  own  interest,  while 
a  democracy  signifies  the  selfish  government  of  the 
"  mob."  It  is  to  be  observed  that  in  translating  Aris- 
totle's terminology  literally,  the  word  democracy  is 
shifted  out  of  its  modern  meaning  and  becomes  a  term 
of  opprobrium ;  some  writers  have  therefore  preferred 
to  avoid  a  literal  translation  and  to  use  "  democracy  " 
for  the  normal  or  beneficent  form,  and  to  substitute 
"  ochlocracy"  to  mean  mob-rule. 

The  classification  thus  offered  was  intended  by  Aris- 
totle to  bear  a  peculiar  significance  in  that  it  typified 
not  only  the  divisions  of  governments,  but  also  indicated 
a  series  of  forms,  representing  what  might  be  considered 
the  natural  evolution  of  government.  An  original  king- 
ship was  presumed  to  change  into  an  aristocracy  and 
then  through  successive  stages  of  oligarchy  and  tyranny 
into  democracy. "  The  first  governments,"  says  Aristotle,* 
"  were  kingships,  probably  for  this  reason,  because  of 
old  when  cities  were  small,  men  of  eminent  virtue  were 
few.  They  were  made  kings  because  they  were  bene- 
factors, and  benefits  can  only  be  bestowed  by  good  men. 
But  when  many  persons  equal  in  merit  arose,  no  longer 
endui'ing  the  preeminence  of  one,  they  desired  to  have 
a  commonwealth  and  set  up  a  constitution.  The  ruling 
class  soon  deteriorated  and  enriched  themselves  out  of 
the  public  treasury ;  riches  became  the  path  to  honour, 
and  so  oligarchies  naturally  grew  up.  These  passed  into 
tyrannies,  and  tyrannies  into  democracies  :  for  love 
of  gain  in  the  ruling  classes  was  always  tending  to 
diminish  their  number,  and  so  to  strengthen  the  masses, 

^  Aristotle,  Politics,  ii,  chap.  xv. 


THE   FORM   OF   THE   STATE  113 

who  in  the  end  set  upon  their  masters  and  established 
democracies." 

Some  writers  in  their  analysis  of  the  Aristotelian 
classification  have  put  forward  as  the  "natural"  order  of 
succession,  —  monarchy,  tyranny,  aristocracy,  oligarchy., 
polity,  and  lastly  democracy.  The  last  in  its  turn  may 
again  change  into  monarchy  and  hence  form  a  recur- 
ring cycle.*  The  process  may  be  explained  in  detail 
thus : — 

Starting  for  instance  at  a  given  point  in  the  cycle, 
we  find  a  government  in  existence  as  a  hereditary 
monarchy.  With  the  degeneration  of  the  character  and 
aims  of  the  successive  monarchs,  it  passes  into  a  tyranny, 
and  is  no  longer  dii-ected  towards  the  public  good.  The 
united  efforts  of  the  more  powerful  magnates  of  the 
community  overthrow  the  monarch  and  set  up  an  aris- 
tocratic government.  This  again  degenerates,  loses  the 
public  spirit  which  at  first  inspired  it,  and  lapses  into 
an  oligarchy.  Against  this  regime  the  citizens  as  a 
whole  break  into  successful  revolt  and  establish  a 
"polity,"  or  in  modern  terminology  a  democracy.  Pushed 
to  an  extreme  the  democracy  is  converted  into  the  op- 
pression of  the  rich  by  the  masses,  and  thus  becomes 
an  ochlocracy  (Aristotle's  democracy).  The  intolerable 
confusion  that  results  is  brought  to  an  end  by  the 
emergence  of  an  all-powerful  warrior-statesman  who 
establishes  himself  as  a  king.  Thus  the  cycle  has  run 
its  course  and  begins  again. 

^  This  is  the  interpretation  given  to  Aristotle's  theory  by  Wood- 
row  Wilson  {The  State,  chap,  xiii,  §§  1395-1397).  It  is  interesting  in 
this  connection  to  consider  Plato's  discussion  of  the  same  subject,  and 
Aristotle's  criticism  of  Plato's  view.  See  Plato,  Republic,  viii,  §  545 ; 
and  Aristotle,  Politics,  v,  chap.  xii. 


114  THE  NATURE  OF  THE  STATE 

The  theory  of  political  change  laid  down  by  Aris- 
totle ajipears,  to  a  large  degree,  corroborated  by  the 
history  of  the  Greek  city  states  in  the  centuries  pre- 
ceding the  Peloponuesian  War ;  *  indeed  it  was  as  an 
interpretation  of  their  recurrent  experience  that  Aris- 
totle, who  was  essentially  an  inductive  and  practical 
writer,  offered  this  view  of  political  permutations. 
Even  in  recent  history  examples  are  found  of  a  more 
or  less  complete  political  progression  of  this  sort.  The 
French  despotic  monarchy  of  the  eighteenth  century 
was  overthrown  by  the  revolutionary  movement  (1789- 
92),  which  in  its  inception  was  largely  under  the 
guidance  of  the  enlightened  minority,  and  whose  initial 
stages  might  therefore  be  looked  upon  as  the  overthrow 
of  despotism  by  aristocracy.^  In  the  second  phase  of 
the  revolution  the  aristocracy,  as  represented  by  the 
property-holding  voters  of  the  constitution  of  1791 
(an  oligarchy,  in  the  minds  of  the  Jacobin  extremists), 
were  overthrown,  and  the  republic  established,  resting 
theoretically  on  universal  suffrage  and  complete  demo- 
cracy. The  turbulent  anarchy  into  which  this  demo- 
cratic regime  degenerated  (1793-99)  was  brought  to 
an  end  by  the  emergence  of  a  military  monarch  in  the 
person  of  Napoleon  Bonaparte.  The  links  of  the  pro- 
gression are  not  precisely  complete,  but  yet  offer  an 
analogy  in  some  degree  corresponding  to  the  Aris- 
totelian cycle.  The  last-mentioned  phase,  the  suppres- 
sion of  anai'chic  disorder  by  the  establishment  of  a 

^  An  able  analysis  of  the  origin,  development,  and  decay  of  the  Greek 
city  state  is  given  by  Ward  Fowler,  The  City-State. 

'^  The  fact  that  the  constitution  of  1701  conferred  the  sufifrage  only 
on  the  property-holders  lends  color  to  this  view.  See  Aulard,  Ilistoire 
Politique  de  la  Rivolution  Fram^aise. 


THE  FORM   OF  THE   STATE  115 

military  autocracy,  is  one  that  has  shown  itself  speeially 
liable  to  recur.  Yet  when  all  is  said,  it  cannot  be 
argued  that  the  Aristotelian  cycle  is  to  be  looked  upon 
as  a  necessary  or  even  as  a  normal  course  of  political 
change.  Even  Aristotle,  who  regarded  it  as  normal, 
shows  by  his  discussion  ^  of  the  means  of  preventing 
revolutions  that  he  did  not  consider  it  as  inevitable. 
Least  of  all  does  it  hold  true  of  the  condition  of  the 
modern  political  state.  Nor  is  the  classification  of  states 
into  monarchies,  aristocracies,  and  democracies  to  be 
looked  upon  as  a  satisfactory  and  sufficient  division  as 
applied  to  the  modern  world.  In  the  first  place,  the 
terms  monarchy  and  democracy  open  the  way  at  once 
to  great  confusion.  If  a  democracy  means,  as  Aristotle's 
polity  does,  a  system  in  which  the  political  jjower  lies 
in  the  mass  of  the  people,  Great  Britain  is  to  be  classed 
as  such,  and  falls  into  the  same  category  as  the  United 
States,  notwithstanding  the  obvious  formal  difference 
between  these  two  governments.  If,  on  the  other  hand, 
having  regard  to  the  existence  of  a  titular  sovereign. 
Great  Britain  is  classed  as  a  monarchy,  it  falls  into 
the  same  class  of  government  as  Russia  or  Persia,  an 
absurdity  equally  glaring.  It  is  thus  seen  that  the  Aris- 
totelian division  offers  no  adequate  treatment  of  consti- 
tutional or  limited  monarchies,  which  are  nevertheless 
as  prominent  as  any  existing  form  of  government.  The 
classification  is  inadequate,  too,  in  other  ways.  It  fails 
to  take  account  of  the  difference  between  a  federal  and 
a  non-federal  or  unitary  government,  —  a  distinction 
which,  as  we  shall  presently  see,  is  of  the  greatest  im- 
portance in  connection  with  modern  states.    Nor  does 

1  Politics,  bk.  V. 


116  THE   NATURE   OF   THE   STATE 

it  make  any  distinction  between  governments  accord- 
injr  to  the  differences  of  the  constitutional  relation  of 
legislature  and  executive.  This  also,  as  we  shall  see,  is 
of  the  greatest  importance. 

2.  Later  Classifications;  Montesquieu,  Rous- 
seau, Bluntschli,  etc.  Imperfect,  however,  as  the 
Aristotelian  formula  is,  it  was  nevertheless  accepted 
as  one  of  the  cardinal  tenets  of  political  science.  Not 
until  quite  modern  times  do  we  find  it  subject  to  seri- 
ous modification  or  expansion.  Montesquieu,  whose 
"  Esprit  des  Lois  "  (1748)  will  fall  under  considera- 
tion in  the  succeeding  chapter,  proposed  a  division  into 
republican,  monarchial,  and  despotic  governments.  Re- 
publican government  was  that  "  in  which  the  people 
as  a  body  or  even  a  part  of  the  people  has  the  sove- 
reign power ;  monarchial,  that  in  which  a  single  per- 
son governs,  hut  only  hy  fixed  and  established  laws  ; 
whereas  in  despotic  government  a  single  person  with- 
out any  law  or  rule,  conducts  everything  according  to 
his  will  and  caprice."  ^  Rousseau  offers  a  division  of 
governments  into  monarchies,  aristocracies,  and  demo- 
cracies, subdividing  aristocracies  into  natural,  elective, 
and  hereditary.  He  admits  also  the  existence  of  mixed 
forms  of  government,  as  in  the  anarchical  kingdom 
of  Poland.  Many  other  writers  of  the  eighteenth  and 
earlier  nineteenth  centuries  offer  variations  of  the 
classification  of  Aristotle,  all  of  which,  however,  are 
open  to  the  same  objection  of  inadequacy  as  applied  to 
the  complex  organization  of  modern  states.  Bluntschli 
presents  a  unique  addition  to  the  list  of  governments 
in  the  shape  of  theocrac}",  a  normal  form  to  which  there 

^  Esprit  des  Lois,  bk.  ii,  chap.  i. 


THE   FORM   OF   THE  STATE  117 

corresponds  a  perverted  form, "  idolocracy,"  The  former 
name  is  applied  to  states' "  in  which  no  human  author- 
ity has  been  recognized,  in  which  the  supreme  power 
has  been  attributed  either  to  God,  or  to  a  God  or  to 
some  other  superhuman  being-,  or  to  an  Idea.  The  men 
who  exercise  rule  are  not  regarded  as  its  possessors, 
but  as  the  servants  and  vice-gerents  of  an  unseen  ruler. 
Its  perversion  may  be  called  Idolocracy."  Such  a 
classification  seems  quite  fallacious.  For  even  grant- 
ing the  validity  of  this  fourth  class,  it  lies  crosswise 
of  the  other  three,  and  is  not  exclusive  of  them.  We 
might  have  a  theocracy  that  had  the  form  of  a  mon- 
archy, an  aristocracy,  or  a  democracy.  Other  writers 
have  attempted  more  elaborate  methods  of  division, 
which  are  intended  to  account  for  all  the  various  his- 
torical forms  of  the  state.  Of  this  nature  is  the  classi- 
fication of  Von  Mohl  (a  German  publicist  of  the  earlier 
nineteenth  century)  ;  he  distinguishes  patriarchal,  theo- 
cratic, despotic,  classic,  feudal,  and  constitutional  states. 
Very  little  examination  is  needed  to  see  that  such 
classes  overlap  each  other  in  all  directions  ;  indeed 
attempts  of  this  sort  to  effect  a  division  that  is  at  once 
logical  and  chronological,  run  the  danger  of  drifting 
into  mere  description. 

More  modern  writers  *  undertake  a  division  of  states 
which  shall  take  account  not  merely  of  the  general 
location  of  suj^reme  legal  power,  but  also  of  the  salient 
features  of  the  organization  and  structure  of  the  gov- 
ernment. Indeed,  while  accepting  Aristotle's  division 
as  true  as  far  as  it  extends,  it  seems  necessary  in  classi- 

1  See  Gareis,  Allgemeines  Staatsrecht ;  and  Jellinek,  AUgemeine 
Staatslehre,  chap.  xx. 


118  THE   NATUllE   OF  THE  STATE 

fying  the  states  of  the  modern  world  to  take  account 
of  certain  especial  features  of  organization  the  exist- 
ence of  which  introduces  a  fundamental  difference  be- 
tween forms  of  government.  Chief  amongst  these  is 
the  distinction  between  unitary  and  federal  govern- 
ments. In  a  unitary  government  the  organs  of  local 
authority  (provincial  and  county  bodies,  etc.)  exist  by 
virtue  of  an  express  creation,  or  by  tacit  recognition 
from  the  central  government.  The  latter  has  power,  le- 
gally, to  terminate  their  existence  or  alter  their  form. 
The  governments  of  France,  Great  Britain,  and  Italy 
are  unitary.  The  governments  of  the  United  States  and 
Germany,  on  the  other  hand,  are  federal.  Here  both 
the  central  and  local  authorities  derive  their  power 
from  an  antecedent  source,  and  neither  is  legally  com- 
petent to  destroy  the  other.  A  further  distinction  is 
found  in  the  difference  between  what  is  called  parlia- 
mentary, responsible,  or  cabinet  government,  and  the 
form  known  as  non-responsible  or  non-parliamentary. 
In  the  former  the  executive  is  virtually  appointed  by, 
and  holds  office  during  the  pleasure  of,  the  legislative 
body.  This  is  the  case  in  England  and  in  France.  In 
the  latter  the  executive  is  not  appointed  by  the  legis- 
lature, and  cannot  be  dismissed  by  it.  Of  this  char- 
acter is  the  government  of  the  United  States,  of  the 
separate  states  of  the  Union,  Cuba,  etc. 

3.  Practical  Classification  of  Existing  States. 
In  attempting  a  somewhat  elaborate  practical  classifi- 
cation of  states,  it  seems  advisable  to  make  no  attempt 
to  include  all  the  historic  forms  which  have  appeared 
in  the  evolution  of  the  state  (city  states,  feudal  mon- 
archies, etc.),  but  to  confine  ourselves  to  actually  exist- 


THE  FORM   OF  THE   STATE  119 

ing  types.  It  is  better  also  to  leave  on  one  side  those 
communities  of  the  modei'n  world,  such  as  China,  whose 
imperfect  organization  hardly  admits  of  their  being 
called  states  in  the  strict  sense.  In  dealing  with  his- 
toric and  imperfect  forms  of  the  state,  no  more  accurate 
classification  than  the  original  category  of  Aristotle 
can  be  applied  without  degenerating  into  mere  descrip- 
tion. It  is  well,  therefore,  to  take  the  primary  classifi- 
cation as  of  general  validity,  and  to  supplement  it  with 
a  more  exact  category  of  modern  states.  In  the  light 
of  what  has  been  said,  the  division  shown  in  the  table 
on  the  following  page  may  be  suggested. 

The  basis  of  division  in  this  plan  proceeds  in  the 
first  place  from  the  fundamental  distinction  between 
despotic  and  democratic  states.  In  the  former  the  su- 
preme legal  power  is  in  the  hands  of  one  person ;  in  a 
democratic  state  it  is  in  the  hands  of  the  majority  of 
the  people,  or  their  representatives.  This  seems  the 
most  fundamental  of  all  distinctions  ;  it  corresponds  to 
the  complete  contrast  offered  by  the  legal  organization 
of  such  states  as  Russia,  Turkey,  and  Persia  on  the  one 
hand,  and  those  of  France,  the  United  Kingdom,  and  the 
United  States  on  the  other.  It  seems  unfortunate  to 
use  the  word  despotic  to  indicate  the  former  class, 
since  in  the  legal  sense  every  state  may  be  said  to  be 
despotic.  But  the  term  monarchical,  or  even  tyrannical, 
only  leads  to  worse  confusion,  and  ready-made  termi- 
nology is  seldom  felicitous.  As  a  second  grouping  we 
have  the  subdivision  of  democracies  into  limited  mon- 
archies (governments  in  which  the  nominal  headship 
of  a  personal  sovereign  is  preserved)  and  republics,  in 
which  the  chief  executive,  both  titular  and  real,  is  the 


120 


THE  NATURE   OF  THE  STATE 


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THE   FORM   OF  THE   STATE  121 

appointee  of  the  people.  For  evident  reasons  there  is 
no  similar  division  of  despotic  monarchies.  The  further 
divisions  between  unitary  and  federal  governments, 
and  between  responsible  and  non-responsible  forms, 
have  already  been  explained.  There  can  evidently  be 
no  federal  or  responsible  subdivisions  under  the  des- 
potic group. 

4.  The  Constitution ;  Written  and  Unwritten 
Constitutions.  The  form  of  any  particular  state  is 
called  its  constitution.  In  America  it  is  natural  to  think 
of  the  word  "  constitution  "  as  indicating  a  written  doc- 
ument. But  in  the  wider  sense  of  the  term  it  refers 
to  the  fixed  fundamental  law  of  any  state,  whether 
expressed  in  a  written  constitution  or  otherwise.  The 
following  definition  is  offered  by  Professor  Woolsey :  ^ 
"The  collection  of  principles  according  to  which  the 
powers  of  the  government,  the  rights  of  the  governed, 
and  the  relations  between  the  two  are  adjusted  is  called 
a  constitution."  Compare  the  definition  of  the  distin- 
guished English  jurist,  Mr.  E.  Dicey :  "  All  rules 
which  directly  or  indirectly  affect  the  distribution  or  the 
exercise  of  the  sovereign  power  in  the  state."  Of  these 
principles  or  rules,  some  may  exist  in  written  form  in  a 
constitutional  document,  but  others  may  be  of  equally 
binding  force  though  resting  for  their  sanction  only  on 
long-standing  custom.  This  is  seen  particularly  in  look- 
ing at  the  constitution  of  England.  Some  of  the  most 
important  parts  of  it  are  matters,  not  of  statutory  en- 
actment, but  of  customary  usage  ;  and  this  customary 
usage  is  to  be  regarded  sometimes  as  having  the  aspect 
of  law  enforceable  by  the  courts,  sometimes  merely 

1  Political  Science,  vol.  i. 


122  THE  NATURE  OF  THE  STATE 

as  an  understand! iig  or  convention,  whose  observance 
is  only  guaranteed  by  the  force  of  tradition  and  of 
public  opinion.  The  cabinet  system,  for  example,  by 
which  the  ministers  of  the  executive  are  selected  with 
the  approval  of  the  majority  of  the  House  of  Commons 
from  among  the  members  of  the  two  houses  of  Parlia- 
ment representing  a  pai-ticular  political  party  or  group 
of  parties,  is  the  central  feature  in  the  practical  oper- 
ation of  the  British  government ;  it  is  purely  a  matter 
of  convention,  not  of  law. 

Hungary  is  another  country  which  offers  an  example 
of  what  is  commonly  called  an  unwritten  constitution. 
The  relations  of  Hungary  to  Austria,  together  with 
which  it  forms  the  dual  monarchy  of  Austria-Hungary, 
are  indeed  based  upon  a  fundamental  statute  (December, 
1867)  passed  in  like  terms  by  the  parliaments  of  the 
two  countries,  and  bearing  some  analogy  to  a  written 
constitution.  But  there  is  no  single  constitutional  docu- 
ment regulating,  or  professing  to  regulate,  the  internal 
government  of  the  Kingdom  of  Hungary.  As  in  the 
case  of  England,  to  whose  constitutional  evolution  that 
of  Hungary  offers  an  interesting  parallel,  the  consti- 
tution rests  partly  on  immemorial  custom,  partly  on  a 
series  of  decrees  and  statutes,^  partly  on  conventional 
usages.  The  parliament  of  Hungary  and  the  county 
assemblies  have  existed  for  many  centuries,  and  their 

^  Of  these  the  principal  are :  Golden  Bull  of  Andreas  II  (1222)  ; 
the  Pacification  of  Vienna  (160G) ;  Pragmatic  Sanction  of  Charles  III 
(172;5) ;  Constitutional  Laws  of  1791,  1844,  1848,  and  1867.  From  the 
original  Contract  of  Blood  (no  longer  extant  but  dating  from  the  first 
conquest  of  the  country  and  securing  the  rights  of  the  nobles)  till  the 
present  time  about  fifty  constitutional  statutes  may  be  enumerated.  See 
Dareste,  F.  R.,  Les  Constitutions  Modernes  (2d  edition,  1891),  vol.  i. 


THE   FORM  OF  THE   STATE  123 

existence  is  not  based  on  a  fundamental  written  law. 
Of  the  decrees  referred  to,  the  Golden  Bull  of  Andreas  II 
(a.  d,  1222)  —  restricting  the  power  of  the  king  in  favor 
of  the  privileges  of  the  barons,  and  calling  for  annual 
parliaments  —  suggests  the  Magna  Carta  of  King  John. 
It  has  been  supplemented  by  numerous  other  laws,  the 
most  important  provisions  of  which  were  definitely 
codified  in  statutes  of  1848  and  1867.  Any  of  the  pro- 
visions of  these  can  legally  be  abolished  by  ordinary 
statutes.  It  would  seem  then  that  the  word  constitution, 
if  it  is  to  include  the  organization  of  such  countries  as 
England  and  Hungary,  must  be  used  in  a  wider  accep- 
tation than  its  usual  American  signification.  To  the 
examples  of  Great  Britain  and  Hungary  there  might 
of  course  be  added  the  despotic  states,  such  as<  Russia 
and  Turkey,  whose  government  from  the  nature  of  the 
case  is  not  based  upon  a  written  constitution.  Theoret- 
ically one  could  conceive  of  a  despotic  monarchy  rest- 
ing on  a  written  constitution  ;  one  might  imagine  the 
social  contract  as  enunciated  by  Hobbes,  operating  in 
the  form  of  a  written  constitution,  under  which  all  the 
subjects  surrendered  their  power  to  a  despotic  king. 
But  inasmuch  as,  in  this  instance,  the  power  of  the 
king  would  extend  to  the  alteration  or  abrogation  of 
the  constitution  itself,  the  latter  would  be  entirely 
nugatory  and  the  king's  real  tenure  of  power  would 
rest  in  reality  on  the  continuance  of  the  custom  of 
submission. 

5.  Origin  of  Written  Constitutions.  But  among 
the  organized  states  of  the  civilized  world  the  number 
of  those  which  have  no  written  constitution  professing 
to  regulate  their  internal  structure  is  only  a  very  small 


124  THE   NATURE   OF  THE   STATE 

minority.  Within  the  last  century  and  a  half  most  of 
the  great  states  have  adopted  written  constitutions. 
The  American  colonies,  in  converting  themselves  into 
states,  led  the  way.  Written  constitutions  were  adopted 
in  the  year  1776  by  New  Hampshire,  Virginia,  South 
Carolina,  New  Jersey,  Delaware,  Pennsylvania,  Mary- 
land, and  North  Carolina  ;  in  the  following  year  by 
Georgia  and  New  York  ;  and  by  Massachusetts  in  1780. 
Connecticut  and  Rhode  Island  converted  their  royal 
charters  into  constitutions  by  putting  the  name  of  the 
people  in  the  place  of  that  of  the  king.  France,  at 
the  commencement  of  the  Revolution,  framed  and 
adopted  (^1791)  a  written  constitution  which,  although 
soon  set  aside  in  favor  of  others  equally  ephemeral 
(1793,  1795,  1799),  established  a  historic  precedent. 
Each  of  the  successive  French  governments  of  the 
nineteenth  century  has  adopted  a  written  constitution, 
—  the  Bourbon  government  of  the  Restoration  prefer- 
ring, however,  to  avoid  the  word  "  constitution  "  and  to 
substitute  for  it  the  term  "  charter,"  which  seemed  to 
have  less  flavor  of  popular  sovereignty.  The  present 
government  in  France,  —  the  third  republic,  —  though 
it  has  no  single  document  called  a  constitution,  has, 
nevertheless,  a  code  of  "  constitutional  laws,"  with  a 
special  method  of  revision.  In  the  Napoleonic  era  a 
number  of  written  constitutions  were  issued  under 
French  influence  to  the  tributary  Italian  states.  Dur- 
ing the  same  time  written  constitutions  were  declared 
in  Spain  both  by  the  Bonapartists,  recognizing  King 
Joseph  (1808),  and  by  the  partisans  of  the  Bourbon 
Ferdinand  VII  (1812).  Neither  of  these  proved  per- 
manent ;  but  Spain  is  at  present  under  a  written  con- 


THE  FORM   OF  THE   STATE  125 

stitution  presented  by  the  government  to  a  convention, 
which  ratified  it  in  1876.  During  the  European  rising 
against  Napoleon  (1813,  1814)  written  constitutions 
were  promised  by  Prussia  and  by  several  of  the  states 
of  Germany ;  after  the  war  they  were  actually  granted 
by  Bavaria  (1818)  and  by  Wiirttemberg  (1819).  The 
great  revolution  of  1848  precipitated  a  shower  of  writ- 
ten constitutions  all  over  central  Europe.  Though 
nearly  all  of  them  were  canceled  in  the  ensuing  mon- 
archial  reaction,  that  of  Sardinia  (the  "  Fundamental 
Statute  "  of  1848)  has  remained  in  revised  form  as  the 
constitution  of  the  present  kingdom  of  Italy.  The  king 
of  Prussia  issued  in  1850  a  constitution  prepared  by 
the  crown  and  accepted  by  a  legislative  body  of  a  reac- 
tionary character,  which  has  since,  in  theory  at  least, 
served  as  the  basis  of  the  Prussian  government.  Aus- 
tria, in  1867  (defeated  in  the  war  with  Prussia  and 
Italy,  and  fearing  a  disintegration  of  her  heteroge- 
neous provinces),  adopted  a  set  of  fundamental  laws 
closely  analogous  to  a  written  constitution.  At  the 
present  time,  then,  with  the  exception  of  England, 
Hungary,  and  the  absolute  monarchies,  the  chief  Euro- 
pean states  have  written  constitutions.  The  same  is 
true  of  the  republics  of  Central  and  South  America, 
all  of  which  have  written  constitutions,  serving  at  any 
rate  as  the  nominal  basis  of  their  government. 

The  precedent  having  been  once  successfully  set  in 
America  in  the  eighteenth  century,  its  extension  has 
been  largely  a  matter  of  imitation  and  adaptation.  It 
is  interesting,  however,  to  observe  the  manner  in  which 
the  institution  of  written  constitutions  came  about  in 
the  United  States.    In  a  certain  s^nse  the  written  con- 


126  THE  NATURE  OF  THE   STATE 

stitutions  of  the  American  states  may  be  looked  upon 
as  evolved  out  of  the  charters  granted  by  the  sove- 
reigns of  England  to  trading  companies,  and  conferring 
upon  them  a  corporate  personality,  and,  in  most  in- 
stances, commercial  privileges  or  monopolies.  These 
charters  themselves  were  closely  analogous  to  the  medi- 
aeval charters  of  privileges  given  to  towns,  merchant 
guilds,  or  religious  orders.  Edward  IV,  in  1463, 
granted  a  charter  to  the  merchant  adventurers  trading 
with  Flanders.  Queen  Elizabeth  conferred  a  charter 
(1579)  upon  the  Eastland  company  trading  in  the 
Baltic,  and  granted  another  in  1599  to  the  East  India 
Company.  Under  James  I  (1609)  a  charter  was  granted 
to  the  "  Treasurer  and  Company  of  Adventurers  and 
Planters  of  the  city  of  London  for  the  first  ^  colony  in 
Virginia."  Most  important  of  all  is  the  charter  issued 
by  Charles  I  (1628)  to  the  "  Governor  and  Company 
of  Massachusetts  Bay."  The  Massachusetts  charter 
not  only  incorporates  a  "  trading  company  with  power 
to  implead  or  to  be  impleaded,  etc.,"  but  also  makes 
provision  for  a  frame  of  government  consisting  of  a 
governoi',  deputy-governor,  and  eighteen  assistants, 
and  calls  for  the  holding  of  a  "  greate  and  general 
courte  "  of  the  company  four  times  a  year.  The  emi- 
gration of  the  company  as  an  entirety  to  America  (a 
proceeding  not  contemplated  by  the  government  at  the 
granting  of  the  charter)  converted  their  corporation 
into  a  political  rather  than  a  commercial  body.  Though 
this  charter  was  canceled  in  1684,  it  was  replaced  by 

^  This  is  the  second  Virginia  charter.  The  first  was  granted  in  IGOO 
The  word  "  first  "  is  used  to  distingfuish  them  from  the  Plymouth 
Company.   See  B.  Poore,  Charters  and  Constitutions,  vol.  ii. 


THE  FORM   OF  THE   STATE  127 

another  one  (1691)  which  conceded  less  independence, 
indeed,  to  the  colony,  but  constituted  a  more  purely- 
political  instrument.  Similar  charters  with  privileges 
of  government  were  granted  to  various  other  American 
.  colonies  during  the  period  of  settlement,  though  many 
of  them  were  withdrawn  later.  At  the  time  of  the 
Revolution  colonial  charters  existed  in  Massachusetts, 
Connecticut,  and  Rhode  Island. 

But  although  it  is  necessary  to  recognize  the  import- 
ant part  played  by  trading  charters  in  the  evolution 
of  written  constitutions,  there  are  other  contributory 
factors  which  must  not  be  left  out  of  sight.  The  insti- 
tution of  compacts  or  joint  agreements  for  self-govern- 
ment among  the  people  themselves  played  an  important 
part.  Of  these  compacts  or  "  plantation  covenants," 
the  history  of  the  settlement  of  New  England  in  the 
seventeenth  century  offers  several  examples.  They 
were  occasioned  in  part  by  the  isolation  in  which  the 
colonists  found  themselves,  being  cut  off  from  the  direct 
action  of  the  sovereign  government  to  which  they  ac- 
knowledged allegiance ;  they  were  also  inspired  by  the 
ideas  on  religious  organization  and  government  domi- 
nant among  a  large  section  of  the  colonists.  The  latter, 
being  "  Independents  "  in  matters  of  church  govern- 
ance, had  already  the  custom  of  drawing  up  a  "  church 
covenant,"  which,  being  accredited  by  the  members  of 
the  congregation,  became  as  it  were  the  constitution 
of  their  spiritual  government.  The  most  notable  of  the 
colonial  compacts  is  the  Mayflower  Covenant,  mentioned 
in  a  preceding  chapter.  A  particular  importance  at- 
taches to  documents  framed  in  1639,  and  named  the 
"Fundamental  Orders  of  Connecticut,"  which  are  prac- 


128  TPIE  NATURE  OF  THE  STATE 

tically  a  political  constitution  adopted  by  the  towns  of 
Windsor,  Hartford,  and  Wethersfield,  which  thus  com- 
bined to  form  the  government  of  Connecticut.  On  this 
was  based  the  later  royal  charter  of  1662,  which,  as  has 
been  seen  already,  was  transferred  into  a  state  consti- 
tution. During  the  great  rebellion  of  the  seventeenth 
century  in  England,  the  supremacy  of  the  Puritans  pro- 
duced in  1647  the  famous  "  Agreement  of  the  People," 
intended  to  be  a  fundamental  written  law  superior  to  the 
power  of  parliament,  and  to  be  ratified  by  all  the  nation. 
A  little  later  (1653)  the  regime  of  the  Protectorate 
was  consolidated  in  the  "  Instrument  of  Government," 
drawn  up  by  a  council  of  Cromwell's  officers.  This 
latter  was  a  written  constitution.  But  the  restoration  of 
the  monarchy,  theoretically  on  its  old  basis,  broke  up 
the  thread  of  constitutional  development  and  left  it  to 
be  brought  to  a  culmination  by  the  American  coloitists 
of  the  next  century. 

6.  The  Distinction  between  States  with  Writ- 
ten and  those  -with  Unw^ritten  Constitutions  an 
Illusory  Basis  of  Division.  From  what  has  been  said 
one  might  reasonably  expect  that  the  classification  of 
governments  ought  to  have  included  the  distinction 
between  those  that  have  a  written  constitution  and  those 
that  have  an  unwritten.  But  such  a  distinction,  self- 
evident  as  it  appears  at  first,  is  in  reality  illusory  and 
unsatisfactory.  In  the  first  place  no  constitution  is 
wliolly  an  unwritten  one.  Thus  in  the  case  of  the  United 
Kingdom  certain  parts  of  the  constitution  undoubtedly 
consist  of  written  documents;  the  Magna  Cai-ta,  the 
Bill  of  Eights  (of  1689),  the  Act  of  Settlement  (1701), 
and  the  statutes  of  1832,  1867,  1884,  and  1885,  regu- 


THE  FORM   OF   THE   STATE  129 

lating  the  right  to  vote  and  the  representation  of  the 
people,  are  evident  examples.  Nor  does  a  so-called 
written  constitution  of  necessity,  or  even  usually,  contain 
the  whole  of  the  fundamental  law  of  the  country  to 
which  it  applies.  Any  constitution  is  soon  found  to  be- 
come surrounded  in  its  operation  with  a  growth  of  pre- 
cedents and  customary  usages  which  presently  obtain 
what  is  practically  a  binding  force,  and  which  become 
in  time  a  part  of  the  constitution  in  the  same  sense.  The 
most  familiar  example  is  seen  in  the  case  of  the  presi- 
dential office  in  the  United  States,  a  third  term  being 
forbidden  by  precedent,  though  not  repugnant  to  the 
written  constitution  itself.  A  good  illustration  of  the 
same  thing  is  seen  in  the  government  of  Italy  :  the 
"  Fundamental  Statute "  does  not  prescribe  the  neces- 
sity of  a  cabinet  system,  —  of  ministers  dependent  as 
in  England  on  the  approval  of  a  parliamentary  major- 
ity, —  but  the  precedent  set  by  Victor  Emmanuel  I 
has  been  consistently  followed,  and  now  the  system  ^  is 
looked  upon  as  a  part  of  the  constitution  of  the  king- 
dom of  Italy. 

There  are  further  reasons  of  still  greater  cogency  for 
refusing  to  group  together  the  countries  with  paper 
constitutions  as  forming  a  class.  It  is  commonly  con- 
sidered that  a  written  constitution  stands  as  a  barrier 
against  the  arbitrary  action  of  the  government,  the 
supposition  being  that  since  the  powers  of  the  govern- 
ment are  limited  and  defined  by  the  constitutional  in- 
strument, any  action  of  the  government  outside  of  its 

1  For  the  special  features  of  cabinet  government  in  Italy,  see 
Lowell,  A.  L.,  Government  and  Parties  in  Continental  Europe,  vol.  i, 
pp.  151-154. 


130  THE   NATURE   OF  THE   STATE 

legal  province  is  void.  Sucli  is  of  course  the  case  with 
the  Constitution  of  the  United  States.  But  it  is  a  con- 
fusion of  thought  to  suppose  that  this  is  a  necessary 
consequence  of  the  existence  of  a  written  constitution. 
The  existence  of  such  restrictions  on  the  actions  of  the 
government  does  not  follow  from  the  mere  fact  of  there 
being  a  written  constitution,  but  depends  on  the  ques- 
tion whether  or  not  the  provisions  of  the  constitution 
are  alterable  by  the  ordinary  legislative  procedure  of 
the  government.  In  the  United  States  this  is  of  course 
not  possible ;  Congress  has  no  power  to  widen  its  own 
jurisdiction.  But  one  can  imagine  a  written  constitution, 
alterable  by  the  ordinary  method  of  legislative  enact- 
ment. This  is  precisely  the  case  with  the  constitution 
(the  Fundamental  Statute)  of  the  kingdom  of  Italy; 
there  is  no  part  of  it  that  cannot  legally  be  altered  by 
an  act  of  the  Italian  parliament.  In  spite  of  the  exist- 
ence in  the  one  country  of  a  written  constitution,  and 
its  absence  in  the  other,  the  fundamental  law  of  Italy 
stands  on  the  same  footing  as  that  of  the  United  King- 
dom. It  is  the  force  of  custom  and  public  opinion,  not 
any  legal  check,  that  limits  the  power  of  the  existing 
governmental  body.  It  seems,  therefore,  that  to  class 
Italy  and  the  United  States  together,  and  contrast  the 
two  of  them  with  the  United  Kingdom,  is  to  proceed 
from  a  purely  artificial  point  of  view.  The  division  of 
governments  into  those  that  have  and  those  that  have 
not  a  paper  constitution,  is  quite  misleading. 

Even  apart  from  the  question  of  amendment  or  alter- 
ation of  the  constitution,  a  feature  of  essential  import- 
ance is  the  validity  or  enforceability  of  the  constitutional 
restrictions.    In  the  case  of  the  United  States,  a  con- 


THE   FORM  OF  THE   STATE  131 

stitutlonal  limitation  is  rendered  valid  by  the  peculiar 
power  entrusted  to  the  Amei"iean  courts.  An  act  of 
Congress  which  goes  beyond  the  constitutional  powers 
of  that  body  becomes  inoperative  by  the  decision  of 
the  judiciary,  to  which  the  executive  and  legislative 
branches  of  the  government  defer.  In  this  arrange- 
ment, which  will  be  discussed  more  fully  in  a  later 
chapter,  lies  the  true  guarantee  of  the  American  Con- 
stitution, and  it  is  this  fact,  and  not  the  mere  fact  that 
the  Constitution  is  a  written  one,  which  offers  such 
a  special  safeguard  to  public  liberty.  But  this  is  a 
feature  quite  peculiar  to  the  American  system.  The 
courts  of  Europe  have  no  such  function,  and  the  in- 
dividual has  no  such  guarantee.  The  example  of  the 
Prussian  constitution  is  a  case  in  point.  Between  the 
years  1860  and  1865  a  struggle  was  carried  on  between 
the  king  of  Prussia  (acting  under  the  advice  of  Bis- 
marck and  anxious  to  increase  the  expenditure  on  the 
army)  and  the  House  of  Representatives  elected  under 
the  constitution.  The  constitution  nominally  places 
the  control  of  finance  in  the  hands  of  the  parliament, 
declaring  that  "  taxes  and  dues  for  the  treasury  of  the 
state  can  be  levied  only  as  they  are  set  down  in  the 
budget  or  ordained  by  special  laws  "  (art.  100,  consti- 
tution of  1850).  The  king,  finding  it  impossible  even 
after  recourse  to  a  dissolution,  to  bend  the  House  of 
Representatives  to  his  will,  passed  his  budget  through 
the  House  of  Peers,  and  collected  the  taxes  without  any 
sanction  from  the  lower  house.  This  was  of  course  a 
gross  violation  of  the  constitutional  provisions.  Under 
the  American  system  any  individual  citizen  thus  taxed 
could  have  appealed  to  the  courts  for  protection.    But 


132  THE  NATURE  OF  THE  STATE 

the  Prussian  system  does  not  permit  of  any  such  re- 
course, and  although  the  House  of  Representatives  made 
formal  protest,  it  had  no  power  to  stop  the  illegal  pro- 
ceedings of  the  executive.  For  the  reasons  thus  cited  — 
that  no  constitution  is  wholly  unwritten  or  wholly  writ- 
ten, that  even  in  a  written  one  the  vital  part  of  the 
matter  lies  in  the  process  of  revision,  and  in  the  relation 
of  the  courts  to  the  constitution  —  it  is  well  not  to  attach 
too  much  importance  to  the  formal  distinction  between 
paper  constitutions  and  constitutions  relying  on  custom. 
7.  Scope  of  the  Constitution.  In  the  next  place 
there  is  to  be  considered  the  scope  and  extent  of  what 
is  properly  to  be  called  the  constitution  of  a  state.  To 
harmonize  with  the  definition  given  above,  it  should 
contain  those  princijjles  according  to  which  the  powers 
of  the  government,  the  rights  of  the  governed,  and  the 
relation  between  the  two  are  adjusted.  This  is  not  the 
case  with  all  written  constitutions ;  many  of  them  con- 
tain regulations  too  minute  and  of  too  little  import- 
ance to  be  classed  as  true  fundamental  law.  This  feature 
is  particularly  noticeable  in  the  present  constitutions 
of  the  states  of  the  Union.  Their  provisions  cover  not 
only  the  fundamental  regulations  of  the  structure  of 
the  government,  but  a  great  many  other  things  as  well. 
Thus  the  constitution  recently  adopted  in  Alabama 
(1901)  contains  specific  provisions  in  reference  to  the 
procedure  of  the  legislature,  the  enumeration  of  thirty- 
one  different  classes  of  private  and  special  legislation 
prohibited  to  the  legislature,  and  refers  to  a  number  of 
miscellaneous  matters  such  as  banking,  railroad  freight 
rates  and  passes,  and  the  Alabama  Polytechnic  Insti- 
tute.  This  is  typical  of  modei-n  American  constitutions, 


THE  FORM  OF  THE  STATE  133 

which  have  tended  constantly  to  become  more  and  more 
lengthy  and  explicit.  The  New  Hampshire  constitution 
of  1776  contains  600  words,  the  constitution  of  Mis- 
souri of  1875  about  26,000,  and  the  present  constitu- 
tion of  Alabama  about  as  many.  The  reason  for  this 
lies  in  the  alteration  of  public  opinion  in  reference  to 
legislative  bodies  in  general.  A  hundred  years  ago  the 
legislature  was  the  object  of  unlimited  popular  confi- 
dence and  seemed  to  embody  in  itself  the  sovereign 
power  of  the  people.  The  experience  of  a  hundred 
years  has  shown  the  possibility  of  corruption  in  the 
legislature  itself,  and  popular  distrust  has  led  to  the 
attempt  to  safeguard  the  people  from  venality  and  cor- 
ruption on  the  part  of  their  representatives.  The  re- 
sult is  that  in  a  certain  sense  many  of  the  provisions 
of  American  constitutions  are  not  of  the  nature  of 
fundamental  law. 

It  thus  becomes  a  little  difficult  to  say  with  accuracy 
just  what  the  words  "constitutional  law"  should  mean. 
If  the  phrase  is  taken  in  a  purely  literal  sense  to  mean 
the  law  contained  in  a  written  constitution,  we  omit 
the  accompanying  customary  usages  and  judicial  inter- 
pretation, and  include  much  that  is  in  the  constitution 
but  is  not  fundamental.  For  example  the  article  (No. 
51)  of  the  constitution  of  Switzerland  which  declares 
that  the  order  of  Jesuits  is  not  allowed  in  Switzer- 
land is  only  constitutional  law  in  the  sense  that  it  is  in 
the  constitution.  In  the  case  of  a  country  with  a  cus- 
tomary constitution,  "  constitutional  law "  means  all 
such  customs,  common  law,  and  statutes  as  are  of  a 
fundamental  nature.  This  is  of  course  a  definition  in  a 
circle,  yet  the  sense  conveyed  is  fairly  obvious.    In  the 


134  THE  NATURE  OF  THE  STATE 

United  Kingdom,  for  example,  the  acts  of  Parliament 
of  1832, 1867, 1884,  and  1885,  regulating  the  represen- 
tation of  the  people,  are  constitutional  law ;  the  factory- 
act  of  1901,  though  passed  in  the  same  way  by  the 
same  authority,  is  not. 

8.  Amendment.  Something  must  be  said  in  con- 
clusion in  regard  to  the  alteration  or  amendment  of  a 
constitution.  In  such  countries  as  England  and  Hun- 
gary, revision  or  alteration  is  effected  by  the  ordinary 
legislative  process.  The  same  is  true  of  certain  coun- 
tries with  written  constitutions,  such  as  Italy.  Some 
written  constitutions  make  no  explicit  provisions  for 
revision,  as  that  of  Wiirttemberg  (1819)  and  the 
French  "  charters  "  of  1814, 1815,  and  1830.  In  these 
cases  it  is  to  be  presumed  that  the  ordinary  legislative 
process  includes  the  revisionary  power.  But  in  the 
great  mass  of  written  constitutions  a  special  method  of 
revision  is  prescribed,  in  all  cases  necessitating  a  more 
deliberate  and  difficult  process  than  the  passage  of  an 
ordinary  law.  The  German  federal  constitution  (art. 
78)  allows  revision  by  ordinary  legislative  process,  with 
the  provision  that  fourteen  votes  in  the  upper  house 
are  sufficient  to  defeat  the  amendment ;  inasmuch  as 
Prussia  has  seventeen  votes,  the  article  precludes  any 
revision  without  the  consent  of  the  king  of  Prussia,  in 
other  words,  of  the  German  emperor.  Various  devices 
are  adopted  in  other  constitutions,  —  the  election  of  a 
special  parliament  on  the  issue  of  the  revision  (as  in 
Spain),  the  reiteration  of  the  demand  for  revision  by 
successive  legislatures  (French  constitution  of  1791), 
etc.  The  systems  at  present  in  force  in  France  and 
the  United  States  present  contrasted  extremes  of  sim- 


THE  FORM  OF  THE   STATE  135 

plicity  and  difficulty  of  revision.  In  France  a  revision 
can  be  adopted  in  a  joint  session  of  the  Chamber  of 
Deputies  and  the  Senate,  a  provision  originally  framed 
in  the  hope  of  easily  converting  the  republic  into  a 
monarchy.  The  natural  objection  to  such  a  simple  pro- 
cess of  amendment  is  the  absence  of  security  against 
premature  and  ill-considered  change.  In  the  United 
States,  on  the  other  hand,  the  process  is  so  difficult  as 
to  be  almost  impossible.^  It  is  true  that  the  Constitu- 
tion has  been  amended  fifteen  times,  but  an  analysis 
of  the  circumstances  under  which  the  changes  were 
adopted  show  that  in  a  certain  sense  the  Constitution 
has  never  been  amended.  Thus  the  ten  amendments 
which  constitute  the  "  Bill  of  Rights,"  or  the  protec- 
tion of  individual  liberty  against  the  action  of  the 
government,  are  really  part  of  the  Constitution  itself. 
They  were  appended  in  accordance  with  an  agreement 
that  was  reached  at  the  time  of  the  ratification  of 
the  Constitution  itself  and  designed  to  meet  the  objec- 
tions raised  in  Massachusetts  and  elsewhere  against 
the  possible  sacrifice  of  individual  liberty  under  the 
new  national  government.^  The  Eleventh  and  Twelfth 
amendments,  in  reference  to  bringing  suit  against  a 
state  and  to  the  method  of  electing  the  President,  are 
merely  in  rectification  of  oversights,  and  contain  no 
real  departure  from  the  intention  of  the  makers  of  the 

1  See  Constitution  of  the  United  States,  art.  v,  already  quoted  in 
Chapter  IV,  p.  58.  "  It  would  seem,"  says  Woodrow  Wilson  in  his  Con- 
gressional Government,  "  that  no  impulse  short  of  the  impulse  of  self- 
preserration,  no  force  less  than  the  force  of  revolution,  can  nowadays 
be  expected  to  move  the  cumbrous  machinery  of  formal  amendment 
erected  in  Article  i." 

■^  See  Fiske,  Critical  Period  of  American  History. 


136  THE   NATURE   OF   THE   STATE 

Constitution.  The  Thirteenth,  Fourteenth,  and  Fif- 
teenth amendments,  prohibiting  slavery  and  attempt- 
ing to  give  equal  political  status  to  whites  and  blacks, 
only  received  the  required  ratification  by  three  fourths 
of  the  state  legislatures  as  a  consequence  of  the  Civil 
War  and  the  "  reconstruction  "  of  the  Southern  govern- 
ments.* The  system  may  therefore  fairly  be  criticised 
as  too  cumbrous  for  practical  use. 

But  the  most  important  of  all  present  methods  of 
constitutional  revision  is  by  a  more  direct  action  of  the 
people  than  any  of  the  plans  mentioned  above.  The 
calling  of  a  representative  convention  elected  expressly 
for  the  purj)ose  of  making  a  constitution  may  be  looked 
upon  as  the  typical  American  system ;  such  a  consti- 
tution is  in  nearly  all  cases  submitted  to  ratification 
by  popular  vote.  Constitutions  promulgated  directly 
by  the  conventions  themselves  (as  for  example  in  South 
Carolina,  1895,  and  in  Delaware  1897),  are  nowa- 
days quite  exceptional.  It  is  especially  interesting  to 
compare  with  the  process  of  amending  the  Constitution 
of  the  United  States  the  methods  of  revision  existing 
in  the  federal  governments  of  Switzerland  and  the 
commonwealth  of  Australia.  In  Switzerland  (consti- 
tution of  1874)  a  constitutional  amendment  passes 
through  both  houses  of  the  legislature,  a  simple  major- 
ity being  sufficient,  and  is  then  submitted  to  the  vote  of 
the  people ;  it  must  be  ratified  by  a  majority  not  only 
of  the  votes  but  also  of  the  different  cantons  that  form 
the  confederation.  It  is  further  provided  that  a  de- 
mand for  a  revision  of  the  constitution  made  by  either 
branch  of  the  legislature,  or  by  the  petition  of  fifty 
^  See  Curtis,  Constitutional  History  of  the  United  States,  vol.  ii. 


THE   FORM   OF  THE   STATE  137 

thousand  voters,  must  be  followed  by  a  popular  vote  on 
the  desirability  of  undertaking  a  revision.  The  method 
of  amendment  adopted  under  the  federal  constitution 
of  Australia  is  closely  similar.  Proposals  for  amend- 
ment are  made  in  the  legislature,  and  after  passing  both 
houses  by  an  ordinary  majority  are  submitted  to  the 
people.  To  be  adopted  they  must  obtain  a  majority  of 
the  votes  cast  as  a  total  and  be  carried  in  a  majority 
of  the  states. 

HEADINGS  SUGGESTED 
Aristotle's  Politics  (Jowett's  translation,  1885),  bk.  iii. 
Willoughby,  W.  W.,  The  Nature  of  the  State  (1896),  chap.  xiii. 
Borgeaud,  C,  Adoption  and  Amendment  of  Constitutions  (trans- 
lation, 1895),  part  i. 

FURTHER   AUTHORITIES 
Gareis,  Allgemeines   Staatsrecht  (Marquardsen,  Handbuch  des 

Oeffentlichen  Rechts). 
Woolsey,  T.,  Political  Science  (1878),  vol,  i. 
Curtis,  G.  T.,  Constitutional  History  of  the  United  States  (1896). 
Fiske,  J.,  Critical  Period  of  American  History,  1888. 
Bluntschli,  J.  K.,  Theory  of  the  State  (1885). 
Sidgwick,  H.,  Elements  of  Politics  (1897). 
Dunning,  W.,  History  of  Political  Theories  Ancient  and  Mediieval 

(1902). 
Plato,  Republic,  bk.  viii. 
Stevens,  C.  E.,  Sources  of  the  Constitution  of  the  United  States 

(1894). 
Schouler,  J.,  Constitutional  Studies  (1897). 


PART   II 

THE  STRUCTURE  OF  THE  GOVERNMENT 


1 


CHAPTER  I 

THE  SEPARATION  OF  POWERS 

1.  Nature  of  Executive,  Legislative,  and  Judicial  Power.  —  2.  The- 
ory of  the  Separation  of  Powers ;  Montesquieu.  —  3.  Influence  of 
this  Theory  in  America  and  France.  —  4.  Extent  of  its  Application 
in  Existing  Governments.  —  5.  Continental  Administrative  Law.  — 
6.    General  Criticism  of  the  Theory  of  the  Separation  of  Powers. 

1.  Nature  of  Executive,  Legislative,  and  Judi- 
cial Power.  In  the  first  part  of  the  present  vohime  we 
have  been  concerned  with  the  discussion  of  government 
as  a  whole,  and  with  the  relations  of  the  entire  machi- 
nery of  the  state  to  the  individual.  The  purpose  of  this 
and  the  following  chapters  is  to  analyze  in  detail  the 
structure  of  government.  For  this  a  starting-point  is 
found  in  the  division  of  governmental  powers  between 
legislative,  executive,  and  judicial  bodies.  Every  gov- 
ernment that  occupies  more  than  a  quite  primitive  or 
limited  sphere  finds  itself  called  upon  to  perform  du- 
ties of  a  varying  nature.  There  is,  for  example,  a  very 
evident  difference  between  the  functions  exercised  by  a 
member  of  a  legislature,  those  of  a  revenue  officer,  and 
those  of  a  judge.  In  the  first  place  the  government 
has  duties  to  perform  that  are  legislative  and  consist 
in  the  making  of  laws  ;  a  parliament,  a  city  council,  or 
a  constitutional  convention  is  a  legislative  body.  This 
function,  though  of  scant  importance  in  primitive  so- 
ciety (in  which  the  idea  of  deliberate  lawmaking  is 
hardly  known),  is  of  vast  importance  and  a  matter  of 


142      THE  STRUCTURE  OF  THE  GOVERNMENT 

constant  necessity  under  the  complex  conditions  of 
modern  life.  In  a  certain  sense,  inasmuch  as  the  mak- 
ing of  the  law  is  logically  antecedent  to  its  execution 
and  to  decisions  as  to  its  meaning,  the  legislative  func- 
tion is  the  chief  of  the  powers  of  government.  "  The 
legislative  power,"  says  Judge  Story  in  his  "  Commen- 
taries on  the  Constitution,"  "  is  the  great  and  overrul- 
ing power  in  every  free  government."  Looked  at  in  a 
purely  theoretical  light,  the  executive  function  of  the 
government  (the  carrying  out  of  the  law)  appears  in 
a  quite  mechanical  and  secondary  aspect.  In  point  of 
fact,  however,  the  functions  of  the  executive  branch  of 
the  government  are  of  great  importance.  No  matter 
how  explicitly  laws  are  made,  they  must  of  necessity 
leave  a  wide  discretionary  power  in  the  hands  of  those 
who  enforce  them  ;  in  many  matters  —  most  notably  in 
relations  with  foreign  states  —  the  executive  branch  of 
government  must  act  without  explicit  instructions,  and 
is  no  longer  to  be  regarded  as  merely  the  agent  of  the 
legislative  branch  of  the  government.  The  organized 
physical  force  —  armies,  navies,  police,  etc.  —  is  at  the 
command  of  the  executive,  —  is,  in  a  sense,  a  part  of 
the  executive.  It  is  with  the  executive  (in  the  shape 
of  police,  revenue  officers,  postmasters,  etc.)  that  the 
individual  citizen  is  chiefly  in  contact.  Indeed  in  any 
modern  government  the  executive,  even  apart  from 
the  army  and  navy,  vastly  outnumbers  the  two  other 
branches.  The  executive  civil  service  of  the  United 
States  includes  over  300,000  positions ;  there  are  less 
than  140  federal  judges  and  only  476  members  of 
Congress.  The  judicial  organs  of  a  government,  whose 
function  it  is  to  pronounce  as  to  the  application  of  the 


THE   SEPARATION   OF  POWERS  143 

law  to  existing  cases,  though  like  the  executive  theoret- 
ically inferior  to  the  legislature,  exercise  in  reality  a 
function  of  the  greatest  consequence  to  the  citizen,  and, 
in  the  case  of  the  United  States,  a  function  of  a  pecu- 
liar constitutional  importance. 

2.  Theory  of  the  Separation  of  Powers.  At  the 
beginnings  of  modern  democratic  government,  and  in 
particular  in  the  political  writings  of  the  eighteenth 
century,  it  was  a  cardinal  doctrine  of  political  science 
that  these  three  branches  of  government,  the  legislative, 
the  executive,  and  judicial,  should  be  kept  separate  from 
one  another.  A  different  body  of  persons  was  to  ad- 
minister each  of  these  three  departments  and  neither 
body  was  to  have  a  controlling  power  over  either  of  the 
others.  It  was  thought  that  in  this  way  a  peculiar 
guarantee,  indeed  the  only  adequate  guarantee,  might 
be  given  to  public  liberty.  This  is  what  is  known  as  the 
theory  of  the  separation  of  powers.  It  is  not  meant 
that  this  theory  was  altogether  new  in  the  eighteenth 
century.  We  find  traces  of  it  as  far  back  as  Aristotle; 
and  Polybius  in  the  sixth  book  of  his  "  History  of 
Rome,"  in  which  he  treats  of  the  Roman  constitution, 
describes  in  detail  and  with  approval  the  balanced 
powers  intrusted  to  the  senate,  the  consuls,  and  the 
tribunes.  It  was  natural,  however,  that  with  the  de- 
cline of  monarchical  absolutism  and  after  the  sfreat  ob- 
ject-lesson  of  the  English  revolution  of  1688,  construc- 
tive theories  pointing  towards  possibilities  of  popular 
sovereignty  should  receive  especial  attention.  At  the 
hands  of  Montesquieu,  author  of  the  "  Spirit  of  Laws  " 
(1748),  the  theoi'y  met  with  a  definite  and  emphatic 
presentation,  destined  to  give  it  a  lasting*  influence  on 


144      THE   STRUCTURE  OF  THE   GOVERNMENT 

subsequent  political  institutions.  "  If  the  legislative 
and  executive  power,"  says  Montesquieu,  "  are  united 
in  the  same  person  or  in  the  same  body  of  persons, 
there  is  no  liberty,  because  of  the  danger  that  the  same 
monarch  or  the  same  senate  may  make  tyrannical  laws 
and  execute  them  tyrannically.  Nor  again  is  there  any 
liberty  if  the  judicial  power  is  not  separated  from  the 
legislative  and  the  executive.  If  it  were  joined  to  the 
legislative  power,  the  power  of  the  life  and  liberty  of 
the  citizens  would  be  arbitrary ;  for  the  judge  would 
be  the  lawmaker.  If  it  were  joined  to  the  executive 
power,  the  judge  would  have  the  force  of  an  oppres- 
sor." ^  A  similar  judgment  is  expressed  by  the  great 
English  jurist,  Blackstone,  in  his  "  Commentaries  on 
the  Laws  of  England  "  (1765).  "  In  all  tyrannical  gov- 
ernments the  supreme  majesty,  or  the  right  both  of 
making  and  enforcing  laws,  is  vested  in  the  same  man 
or  one  and  the  same  body  of  men  ;  and  when  these  two 
powers  are  united  together  there  is  no  public  liberty." 
Both  of  these  authors  are  led  to  the  statement  of  the 
theory  of  distributed  powers  from  their  analysis  of  the 
British  constitution.  At  the  time  at  which  they  wrote 
the  cabinet  system  was  only  in  the  earlier  stage  of  its 
development.  The  junction  of  both  the  virtual  execu- 
tive and  the  legislative  power  in  the  hands  of  a  cabinet 
or  committee  chosen  out  of  the  legislature  was  not  the 
evident  fact  that  it  is  to-day.  A  British  ministry  of 
Montesquieu's  time  was  still  not  a  unit :  it  allowed  of 
divergence  of  opinion  among  its  members ;  nor  did  the 
latter  all  take  office  or  leave  it  at  the  same  time.  Mon- 
tesquieu,  therefore,   somewhat    excusably   overlooked 

^  Esprit  des  Lois,  bk.  xi,  chap.  vi. 


THE  SEPARATION  OF  POWERS  145 

what  has  since  become  the  leading  fact  of  the  British 
constitution,  and  thought  to  see  in  it  a  balance  of 
power  effected  between  the  king  and  the  two  houses  of 
Parliament,  neither  of  whom  was  supreme  over  the 
other,  and  from  each  of  whom  the  judiciary  was  to  a 
large  extent  independent.  Blackstone,  viewing  the  con- 
stitution only  as  a  lawyer,  knows  nothing  of  a  cabinet. 
The  ministry  as  known  to  the  law  even  at  the  present 
day  are  the  appointed  servants  of  the  crown.  The  fact 
of  their  political  unity  and  membership  of  the  legisla- 
ture is  only  a  matter  of  custom,  not  of  law. 

3.  Influence  of  this  Theory  in  America  and 
France.  The  doctrine  of  public  liberty  effected  by 
distribution  of  power  became  thus  almost  an  article  of 
faith  with  political  writers  of  the  eighteenth  century. 
The  fact  was  of  vital  importance  for  the  history  of  the 
United  States.  At  the  time  of  the  establishment  of 
the  state  governments  the  doctrine  was  put  into  prac- 
tice by  the  separation,  not  of  course  complete,  but  yet 
far  reaching,  of  the  different  branches  of  the  govern- 
ment. The  independent  election  of  state  governors  and 
legislatures,  the  absence  of  the  power  of  dissolution, 
were  embodied  in  the  state  constitutions,  and  have  re- 
mained as  fundamental  parts  of  the  American  system 
of  government.  That  the  adoption  of  this  plan  was 
conscious  and  deliberate  is  seen  in  the  often  quoted 
passage  of  the  Massachusetts  constitution  of  1780 
(part  i,  art.  xxx) :  "  In  the  government  of  this  com- 
monwealth, the  legislative  department  shall  never  exer- 
cise the  executive  and  Judicial  powers,  or  either  of 
them  ;  the  executive  shall  never  exercise  the  legislative 
and  judicial  powers,  or  either  of  them ;   the  judicial 


146      THE  STRUCTURE  OF  THE  GOVERNMENT 

shall  never  exercise  the  legislative  and  executive  powers, 
or  either  of  them ;  to  the  end  it  may  be  a  government 
of  laws,  and  not  of  men." 

The  same  theoi-y  exercised  the  greatest  influence  over 
the  convention  of  1787,  in  which  the  federal  constitu- 
tion was  framed.  Its  members  recognized,  indeed,  the 
need  for  a  modification  of  the  rigidity  of  the  doctrine 
of  separation,  but  in  the  main  they  accepted  it  and 
made  it  the  basis  of  the  Constitution  of  the  United 
States.  "  The  accumulation  of  all  powers,"  says  the 
"  Federalist "  (the  set  of  essays  written  in  defense  of 
the  Constitution  by  Hamilton,  Madison,  and  Jay), 
"  legislative,  executive,  and  judicial,  in  the  same  hands, 
whether  of  a  few  or  many,  and  whether  hereditary,  self- 
appointed,  or  elective,  may  be  justly  pronounced  the 
very  definition  of  tyranny." 

The  fact  that  even  the  state  constitutions  of  1776 
and  1777  and  the  federal  constitution  of  1787  do  not 
adopt  an  absolutely  complete  separation  of  powers  of 
government,  naturally  suggests  the  question  in  how  far 
such  a  separation  would  be  possible,  and  what  would 
be  implied  by  a  complete  adoption  of  the  principle. 
It  would  mean  a  constitution  constructed  on  such  a 
plan  as  the  following :  A  legislature  elected  directly 
by  the  people,  a  set  of  executive  officers  either  elected 
by  the  people  (independently  of  the  action  of  the  legis- 
lature) or  appointed  by  some  person  or  body  of  per- 
sons elected  by  the  people ;  judges  similarly  elected 
and  independent  as  to  tbeir  tenure  of  office  and  emolu- 
ment of  both  the  legislature  and  the  executive.  Even 
then  it  might  be  questioned  wliether  the  liability  of 
executive  officers  to  be  tried  before  the  judiciary  for 


THE   SEPARATION   OF  POWERS  147 

breaches  of  official  duty  or  violation  of  their  legal 
powers,  would  not  be  at  variance  with  a  logically  com- 
plete separation  ;  this,  however,  will  be  considered  later 
in  dealing  with  the  administrative  law  of  Continental 
Europe.  But  granting  such  a  separate  election  and 
independent  tenure  of  office  on  the  part  of  the  three 
departments  of  government,  there  would  still  remain  a 
sense  in  which  the  separation  would  not  be  complete, 
in  which  indeed  it  can  never  be  complete  without  a 
rediictio  ad  ahsurdum.  The  law  enforced  by  the  ex- 
ecutive and  adjudicated  on  by  the  courts  would  still  be 
the  law  made  by  the  legislature.  It  is  to  be  noted  also 
that  such  law  might  conceivably  be  extremely  tyran- 
nical and  unjust.  The  executive  and  the  judges  would 
still  have  to  apply  it,  and  thus  the  separation  of  power 
in  and  of  itself  would  offer  no  guarantee  of  individual 
liberty. 

The  theory  of  separation  obtained  during  the  revo- 
lutionary era  in  France  an  influence  no  less  marked 
than  in  the  United  States.  The  constituent  assembly 
of  1789  adopted  it  as  a  fundamental  principle  in  their 
construction  of  a  new  government.  The  sixteenth 
article  of  the  formal  Declaration  of  Rights  with  which 
they  prefaced  their  constitution,  declares,  "  Every  so- 
ciety in  which  the  separation  of  powers  is  not  deter- 
mined has  no  constitution."  In  accordance  with  this 
general  principle,  the  constitution  established  a  legis- 
lature not  dissolvable  by  the  king,  forbade  the  ministers 
and  other  executive  officers  to  hold  seats  in  the  legis- 
lature, gave  to  the  king  no  right  of  initiative,  and  only 
a  partial  veto  power,  and  instituted  judges  elected  by 
the  people.    The  later  constitution  of  1795  modified 


148      THE   STRUCTURE   OF  THE  GOVERNMENT 

the  separation  by  instituting  a  plural  executive,  —  the 
Directory,  elected  by  the  legislature  itself. 

4.  Extent  of  its  Application  in  Existing  Gov- 
ernments. In  the  course  of  the  nineteenth  century 
the  theory  of  separated  powers  has  lost  a  great  deal 
of  its  former  credit.  The  conspicuous  example  of  the 
British  constitution  invalidates  it  as  a  universal  propo- 
sition. Here  the  development  of  the  cabinet  system 
since  Montesquieu's  time  has  thrown  the  virtual  direc- 
tion of  both  legislative  and  executive  power  into  the 
hands  of  the  same  body  of  men.  Yet  it  would  be  ab- 
surd to  say  that  public  liberty  in  the  United  Kingdom 
has  thereby  been  sacrificed.  As  the  British  constitution 
now  stands,  the  group  of  eighteen  or  twenty  persons 
who  compose  the  cabinet  have  the  conduct  of  the 
executive  government.  They  also  direct  the  course  of 
legislation,  since  a  majority  of  the  predominant  part 
of  the  legislature  —  the  House  of  Commons  —  are  pre- 
pared to  support  their  measures.  Should  they  lose  that 
support  they  resign  their  office.  Thus  the  very  con- 
trary of  the  idea  of  divided  powers  seems  to  be  the 
case.  The  executive  officers  remain  such  only  so  long 
as  they  retain  the  legislative  power.  The  legal  theory 
of  the  constitution,  on  the  other  hand,  still  offers  the 
spectacle  of  more  or  less  opposing  powers  mutually 
balanced,  —  the  king  and  his  ministers  (appointed,  in 
the  theory  of  the  law,  according  to  his  pleasure,  and 
being  merely  his  servants)  conducting  the  executive 
government,  while  the  houses  of  Parliament  make  the 
laws.  The  analysis  of  the  British  government  given 
by  Walter  Bagehot,  the  distinguished  economist  and 
essayist,  in  his  "  English  Constitution "   (1867),  has 


THE   SEPARATION   OF   POWERS  149 

served  to  show  how  completely  the  development  of 
cabinet  government  has  rendered  the  earlier  view  of 
the  British  constitution  inapplicable  to  the  present 
situation.  In  certain  other  respects  the  British  consti- 
tution offers  in  actual  fact  some  features  of  distributed 
powers,  the  most  notable  being  that  of  the  tenure  of 
office  of  the  judges,  who  are  made  virtually  independ- 
ent by  being  appointed  for  life  or  good  conduct. 

Nor  is  there  a  separation  of  powers  observed  in  the 
present  parliamentary  governments  of  France  and  Italy. 
In  France  the  president  is  elected  by  the  legislature. 
His  ministers  are,  in  practice,  though  not  in  law,  the 
representatives  of  a  majority  in  the  Chamber  of  Depu- 
ties. In  the  same  way  the  king  of  Italy  governs  by 
means  of  a  party  ministry.  In  Germany,  in  the  actual 
working  of  the  federal  constitution,  the  powers  of  gov- 
ernment are  not  distributed.  The  German  emperor 
holds  the  executive  power  of  the  federation.  In  his 
capacity  of  king  of  Prussia  he  has  also  a  very  great 
share  of  legislative  control.  In  the  first  place  there  are 
many  measures  ^  —  those  introducing  any  change  of 
existing  regulations  concerning  the  army,  navy,  cus- 
toms, and  excise  —  which  cannot  be  enacted  without 
the  consent  of  his  appointed  delegate  in  the  Bundes- 
ratli  or  upper  house  of  the  legislature.  Through  the 
same  channel  he  enjoys  an  initiative  power  for  any 
kind  of  legislation,  the  control  of  seventeen  out  of  fifty- 
eight  votes  in  the  Bundesrath,  and  a  veto  upon  consti- 
tutional amendments. 

Even  under  the  Constitution  of  the  United  States, 
the  principle  of  distributed  powers  is  only  adopted  in 
^  Federal  Constitution,  articles  xxxv  and  xxxvi. 


150      THE   STRUCTURE   OF  THE   GOVERNMENT 

the  federal  government  to  a  modified  extent.  The 
executive  is  not  without  a  share  in  legislation,  since 
the  President  has  a  partial  veto  power  on  the  acts 
passed  by  the  Congress,  and  something  resembling  a 
power  of  initiative  by  means  of  presidential  messages. 
Nor  is  the  legislature  without  share  in  the  executive 
government,  as  is  seen  in  the  ratification  by  the  Senate 
of  treaties  and  appointments.  The  judges  are  the  ap- 
pointees of  the  executive,  and  the  courts  are  empowered 
to  pass  on  the  constitutionality  of  the  acts  of  the  two 
other  branches  of  the  government.  Even  this  qualified 
separation  existing  under  the  law  of  the  Constitution 
is  still  further  modified  in  the  actual  operation  of  the 
government.  Here  the  existence  of  the  party  system 
is  an  important  factor.  Though  standing  outside  of  the 
legal  machinery  of  the  government,  it  none  the  less 
acts  as  a  bond  of  union  between  the  legislature  and  the 
heads  of  the  executive  government.  Whenever  the 
executive  and  the  majority  in  the  houses  of  Congress 
are  of  the  same  political  party  (as  has  been  continu- 
ously the  case,  for  instance,  between  the  years  1895 
and  1907),  they  are  under  the  guidance  of  common 
councils,  and  are  united  in  the  pursuit  of  the  same 
ends.  It  is  possible,  indeed,  to  look  upon  the  singu- 
larly systematic  and  powerful  growth  of  the  party  sys- 
tem in  the  United  States  as  a  sort  of  "  natural  "  evolu- 
tion consequent  upon  the  attempt  to  keep  apart  the 
powers  of  government ;  an  attempt,  as  it  were,  on  the 
part  of  nature  to  rectify  an  error  in  organic  structure, 
a  process  analogous  to  the  healing  of  a  fractured  limb.* 
In  the  state  governments  the  separation  of  powers  is 
^  See  F.  Goodnow,  Politics  and  Administration. 


THE   SEPARATION  OF  POWERS  151 

more  nearly  complete.  The  separate  election  by  the 
people  of  the  governor  and  other  executive  officers, 
the  legislature,  and  the  judges,  is  the  prevalent  con- 
stitutional arrangement.  The  partial  veto  power  given 
to  the  governor  in  nearly  all  the  states  of  the  Union, ^ 
and  the  governor's  right  of  sending  messages  to  the 
legislature,  are  a  departure  from  the  rigidity  of  the  doc- 
trine. In  all  the  states,  too,  the  courts  have  cognizance 
of  the  official  acts  of  the  members  of  the  government. 

5.  Continental  Administrative  Law.  In  the  coun- 
tries of  continental  Europe  an  apj)lication  of  the  prin- 
ciple of  separation  is  made  quite  contrary  to  American 
ideas  of  government.  The  officers  of  the  government 
acting  in  their  official  capacity  cannot  be  brought  to 
account  before  the  ordinary  courts  of  law ;  nor  can  the 
courts  question  the  validity  of  an  act  of  the  legislature. 
Such  a  system  professes  to  rest  on  the  principle  of  the 
separation  of  powers,  by  protecting  the  executive  and 
judiciary  from  the  control  of  the  third  branch  of  the 
government.  The  protection,  however,  is  only  afforded 
at  the  expense  of  the  individual  citizen,  the  practical 
effect  of  this  fallacious  form  of  separation  being  to 
strengthen  very  much  the  hands  of  the  executive.  The 
peculiar  relation  thus  established  between  the  execu- 
tive and  judicial  branches  of  the  government  will  be 
treated  more  fidly  in  a  later  chapter. 

6.  General  Criticism  of  the  Theory  of  the  Sep- 
aration of  Poivers.  It  remains  to  consider,  in  con- 
clusion, to  what  extent  the  theory  of  the  separation  of 

^  The  governor  has  a  partial  veto  in  forty-one  of  the  forty-five 
states.  The  exceptions  are  Rhode  Island,  Ohio,  Delaware,  and  North 
Carolina.  See  Professor  A.  B.  Hart,  Actual  Government,  pp.  136,  137. 


152      THE   STRUCTURE   OF   THE  GOVERNMENT 

powers  is  to  be  regarded  as  true.  Stated  in  the  form 
of  a  universal  principle,  as  by  Montesquieu  and  Black- 
stone,  in  the  quotations  above,  it  is  undoubtedly  false. 
It  is  not  true  that  there  cannot  possibly  be  public  lib- 
erty where  executive  and  legislature  are  joined  in  the 
same  hands.  The  example  of  Great  Britain  alone  amply 
jjroves  this.  Nor  is  it  true  either  that  the  separation  of 
the  powers  of  government  of  necessity  guarantees  the 
individual  against  possible  tyranny,  establishes  in  and 
of  itself  a  government  "  of  laws  and  not  of  men."  A 
single  government  board  or  body  of  directors  need  not 
of  necessity  act  tyrannically  ;  nor  does  it  follow  that  an 
executive  officer  and  a  legislative  council  elected  and 
acting  separately  will  of  necessity  act  in  the  public  in- 
terest. But  though  no  such  universal  formula  can  be 
laid  down,  it  remains  true  that  in  the  actual  conduct  of 
public  affairs  a  certain  degree  of  separation  of  powers 
makes  towards  efficient  government.  The  divergent 
requisites  in  the  composition  of  executive  and  legisla- 
tive bodies  will  be  treated  in  the  next  chapters ;  it  is 
apparent,  however,  that  absolute  identity  of  the  two  is 
not  to  be  recommended.  The  separation  of  the  judiciary 
to  the  extent  at  least  of  independence  in  tenure  of  office 
is  admitted  by  all  to  be  desirable.  The  question  of  the 
advisability  of  establishing  an  executive  controllable  by 
the  legislature  (as  in  the  cabinet  system  of  Great  Brit- 
ain), or  of  following  the  system  adopted  in  the  state 
governments,  is  a  disputed  point.  Its  solution  will  de- 
pend upon  the  particular  circumstances  and  the  his- 
torical antecedents  of  each  community.  Americans  are 
inclined  to  look  with  favor  on  the  system  of  popular 
election  of  state  officers.    Such  writers  as  A.  Lawrence 


THE   SEPARATION   OF  POWERS  153 

Lowell  in  his  "Essays  on  Government "  and  John  Fiske, 
"  Civil  Government  in  America,"  have  ably  argued  in 
defense  of  the  American  plan.  The  English,  on  the 
other  hand,  are  inclined  to  view  the  union  of  powers  in 
the  hands  of  the  cabinet  as  the  most  admirable  feature 
of  their  system  of  government. 

READINGS  SUGGESTED 
Montesquieu,  Esprit  des  Lois  (1748),  bk.  xi,  chap.  vi. 
The  Federalist  (1788),  Essays  Nos.  47-51. 
Bagehot,  W.,  English  Constitution,  chap.  ii. 

FURTHER  AUTHORITIES 
Polybius,  History  of  Rome,   bk.  vi. 
Goodnow,  F.,  Comparative  Administrative  Law  (1897). 
Hdlie,  M.  F.,  Les  Constitutions  de  la  France  (1880). 
Goodnow,  F.,  Politics  and  Administration  (1900). 
Hart,  A.  B.,  Actual  Government  (1893). 
Lowell,  A.  L.,  Essays  on  Government  (1889). 
Fiske,  J.,  Civil  Government  in  America  (1891). 


CHAPTER  II 

THE  LEGISLATURE 

1.  The  Legislature  ;  General  Requisites,  Procedure,  etc.  —  2.  The 
Bicameral  System  ;  Reasons  for  its  Adoption.  —  3.  Composition  of 
Upper  Houses.  —  4.  Distribution  of  Power  between  the  Two  Houses. 
—  5.  Direct  Legislation ;  the  Initiative  and  the  Referendum. 

1.  The  Legislature ;  General  Requisites,  Pro- 
cedure, etc.  It  has  been  said  in  the  preceding  chapter 
that  there  is  a  necessary  diversity  in  the  composition  of 
the  different  branches  of  the  government  to  meet  the 
distinctive  requirements  of  each.  The  executive  is  con- 
cerned with  action  more  than  deliberation ;  promptness 
and  unity  of  purjiose  are  the  prime  requisites.  For  the 
judiciary,  the  technical  knowledge  of  the  actual  law  to 
be  applied,  and  a  trained  logical  faculty  to  be  used  in 
its  application  are  above  all  necessary.  The  legisla- 
ture, on  the  other  hand,  demands  an  entirely  different 
set  of  qualities.  The  legislature  is,  par  excellence,  a 
deliberative  body,  and  for  deliberation  two  heads  are 
better  than  one,  and  two  hundred  are  better  than  two. 
A  legislative  body  must  consist  of  many  persons,  repre- 
senting numerous  interests,  various  points  of  view,  and 
different  sections  of  the  community.  No  precise  size  can 
be  indicated  as  proper  for  a  legislature;  as  numbers 
increase  the  gain  in  added  wisdom  is  offset  by  the  in- 
creased cumbrousness.  The  French  constituent  assem- 
bly, called  in  1789,  consisted  of  nearly  1200  members. 
This  was  the  largest  legislative  body  of  modern  times, 


THE   LEGISLATURE  155 

and  was  found  hopelessly  unwieldy.  Of  the  popularly 
elected  legislatures  of  the  world,  the  House  of  Repre- 
sentatives at  Washington  contains  386  members,  the 
British  House  of  Commons  670,  the  French  Cham- 
ber of  Deputies  584,  the  German  Reichstag  397,  the 
Italian  Deputies  number  508,  and  the  Spanish  Con- 
gress has  431  members.  The  number  of  members  in 
the  state  legislatures  of  the  United  States  varies  very 
much.  New  Hampshire  has  390,  Massachusetts  242, 
and  Virginia  100  in  the  lower  house,  while  Delaware 
has  only  34,  and  Rhode  Island  72. 

It  is  hardly  possible  to  accomplish  the  work  of  actual 
legislation  among  such  large  bodies  of  men,  without 
the  adoption  of  definite  plans  and  systems  of  procedure. 
Any  large  gathering  which  acts  at  haphazard  and  with- 
out formal  rules  is  liable  to  become  a  mere  babel  of 
tongues ;  its  resolutions,  to  use  Mr.  Bagehot's  phrase, 
get  "  wedged  in  the  meeting."  This  was  the  case  with 
the  French  Assembly  of  1789,  already  referred  to,  which 
in  its  first  enthusiasm  was  inclined  to  proceed  "  accord- 
ing to  the  promptings  of  the  spirit,"  rather  than  to 
follow  any  formal  plan.  They  rejected  the  suggestion 
that  they  should  adopt  the  standing  orders  of  the  House 
of  Commons.  "They  discuss  nothing  in  their  assem- 
bly," wrote  Gouverneur  Morris,  at  that  time  in  Paris, 
and  an  interested  observer  of  their  proceedings.  "  One 
large  half  of  their  time  is  spent  in  hallooing  and  bawl- 
ing." Universal  experience  has  therefore  shown  the 
need  of  what  is  called  legislative  procedure,  a  definite 
method  of  doing  business  which  the  legislature  adopts 
as  part  of  the  necessary  formality  of  the  making  of  a 
law.    Such  rules  have  been  adopted  by  all  the  chief 


156      THE   STRUCTURE   OF  THE  GOVERNMENT 

legislatures  of  the  world.  They  are  of  course  made  by 
the  legislature  itself,  and  can  consequently  be  set  aside 
if  need  be  in  moments  of  stress.  The  objects  aimed  at 
are  the  orderly  and  efficient  dispatch  of  business,  the 
prevention  on  the  one  hand  of  precipitate  and  ill-con- 
sidered action,  and  on  the  other,  of  fruitless  prolixity 
of  debate.  The  rules  thus  adopted  tend  to  be  ex- 
tremely intricate  and  confusing  by  reason  of  the  vast 
amount  of  business  that  tries  to  force  itself  upon  a 
modern  legislature.  Mr.  Bryce  in  his  "  American  Com- 
monwealth "  tells  us  that  an  industrious  member  of  the 
House  of  Representatives  needs  one  whole  session  to 
learn  the  rules  of  procedure. 

A  few  general  features  of  procedure  adopted  in  most 
legislative  bodies  may  be  mentioned.  The  most  impor- 
tant is  the  device  of  requiring  a  bill  to  be  voted  on, 
not  once  and  for  all,  but  at  three  separate  "  readings," 
or  intervals  of  time.  This  is  intended  to  prevent  the 
legislature  from  acting  on  the  spur  of  the  moment,  and 
committing  itself  to  a  measure  under  the  influence, 
perhaps,  of  momentary  emotion.  In  the  British  House 
of  Commons,  "  the  member  who  desires  to  introduce  a 
measure  gives  notice  ...  of  his  intention  to  do  so. 
When  the  motion  comes  on  in  its  order,  he  moves  for 
leave  to  introduce  a  bill.  .  .  .  An  order  of  the  House 
is  made  that  the  bill  be  prepared  and  brought  in  by  the 
mover  and  other  members  named  by  him.  The  bill  may 
then  immediately  be  presented,  which  is  done  by  the 
member  appearing  at  the  bar,  whereupon  the  Speaker 
calls  upon  him  by  name,  he  calls  out,  '  A  bill,  sir,'  and 
is  desired  by  the  Speaker  to  bring  it  up.  He  brings  it 
to  the  table  and  delivers  it  to  the  clerk  of  the  House, 


THE  LEGISLATURE  157 

by  whom  its  title  is  read  aloud.  The  questions  that  a 
bill  '  be  now  read  a  first  time,'  and  that  it  be  printed 
are  put  without  amendment  or  debate ;  an  order  is 
then  made  that  it  be  read  a  second  time  on  a  day 
named."  On  this  day  the  bill  is  again  brought  up,  and 
a  vote  taken  on  the  question  that  the  "  bill  be  now 
read  a  second  time  ;  "  having  successfully  passed  this 
stage  it  is  referred  to  what  is  called  a  committee  of  the 
whole  House ;  here  it  is  discussed,  voted  on  clause  by 
clause,  and  probably  amended.  At  the  conclusion  of 
this  stage  a  day  is  set  for  the  final  consideration  of  the 
bill ;  the  bill  is  presented  in  its  revised  form  to  the 
House,  and  unless  further  amendents  are  now  carried, 
it  is  submitted  to  its  third  and  final  reading.  Even 
after  this  the  bill  may  have  to  be  reconsidered  if 
amended  in  the  Upper  House. "^ 

Another  device  of  legislative  procedure  is  the  dele- 
gation of  the  work  of  the  legislature  to  a  series  of 
committees.  The  aim  of  this  is  to  facilitate  the  dis- 
patch of  business,  and  to  enable  the  legislature,  by 
dividing  itself  into  sections,  to  multiply  its  powers  of 
work.  The  system  has  been  most  completely  developed 
in  the  House  of  Representatives.  Here  the  so-called 
first  and  second  readings  are  a  purely  perfunctory 
matter,  and  mean  the  reading  of  the  title  by  the  clerk. 
After  this  the  bill  is  referred  to  the  appropriate  stand- 
ing committee.  These  are  nominated  by  the  speaker, 
and  are  representative  of  both  the  great  political  par- 
ties. In  the  Fifty-Ninth  Congress  there  are  over  thirty 
standing  committees  of  the  House  of  Representatives ; 

^  Anson,  Law  and  Custom  of  the  Constitution,  part  i,  chap,  vii,  sect, 
ii,  §2. 


158      THE  STRUCTURE  OF  THE  GOVERNMENT 

the  committees  on  Ways  and  Means,  on  Appropriations, 
on  Banking  and  Currency,  on  Commerce,  on  Claims, 
Manufacturing,  Pensions,  etc.,  are  among  the  most 
important.  The  great  majority  of  bills  never  survive 
their  reference  to  a  committee  ;  the  committee,  though 
it  has  no  formal  power  to  negative  a  bill,  destroys 
them  either  by  making  an  adverse  report  or  by  in- 
troducing another  bill  as  a  substitute  or  by  simple 
neglect.  Such  a  system,  accompanied  as  it  is  by  strin- 
gent rules  of  debate,  tends  of  course  to  remove  the  ac- 
tual conduct  of  business  from  the  House  itself,  and  to 
discourage  independent  action  on  the  part  of  individual 
members.  The  French  Cabinet  of  Deputies  adopts  the 
peculiar  system  of  dividing  its  members  by  lot  into 
eleven  sections  or  panels ;  out  of  these  a  special  com- 
mittee is  elected  (by  the  members  of  the  panel)  for 
each  bill  that  is  presented.  Such  a  plan  is  plainly  un- 
satisfactory, as  it  does  not  accord  with  the  system  of 
cabinet  government  supposed  to  operate  in  the  French 
legislature.  The  hazard  of  the  lot  may  lead  to  govern- 
ment bills  being  handed  over  to  opposition  committees. 
It  is  easier,  however,  to  see  the  faults  in  legislative  pro- 
cedure than  to  suggest  adequate  remedies. 

A  further  point  of  importance  in  the  conduct  of 
legislative  business  is  the  need  of  some  method  of  for- 
cibly bringing  the  debate  to  a  close.  The  procedure  of 
most  assemblies  allows  means  whereby  a  vote  may  be 
taken  on  the  question  of  terminating  the  discussion  and 
voting  on  the  matter  under  consideration.  To  this  general 
rule  the  Senate  of  the  United  States  is  an  exception  ; 
it  has  been  a  part  of  the  traditional  dignity  of  that  body 
not  to  interfere  with  the  freedom  of  discussion  by  clos- 


THE  LEGISLATURE  159 

ing  the  debate.^  In  the  House  of  Representatives,  how- 
ever, the  closure  of  the  debate,  the  "previous  question," 
as  such  a  motion  is  called,  may  be  moved  by  any  mem- 
ber, and  is  carried  if  supported  by  a  majority  of  those 
present.  Until  quite  recently  the  British  House  of 
Commons  had  no  such  rule.  It  happened,  however,  that 
during  Mr.  Gladstone's  second  administration  (1880- 
85)  the  Irish  members  took  advantage  of  this  fact  to 
block  all  parliamentary  business  by  talking  against 
time.  This  has  rendered  it  necessary  for  the  House 
somewhat  reluctantly  to  adopt  a  rule  of  closure  (stand- 
ing order  of  1882,  revised  1887).  Under  the  present 
regulations  a  motion  can  be  made  for  terminating  the 
debate;  the  speaker  is  allowed  to  use  his  discretion  as 
to  whether  or  not  he  will  submit  the  motion  to  a  vote. 
A  similar  purpose  is  effected  by  what  is  called  the 
"  closure  by  compartments  "  or  "  the  guillotine,"  which 
consists  in  a  resolution  of  the  House  either  altogether 
precluding  discussion  on  certain  clauses  of  a  bill  or  lim- 
iting the  time  to  be  allotted  to  the  bill  or  to  parts  of 
it.  This  rather  di-astic  form  of  procedure  was  applied 
in  the  case  of  the  Home  Rule  Bill,  which  narrowly 
passed  the  Commons  in  1893.^ 

2.  The  Bicameral  System ;  Reasons  for  its 
Adoption.  Of  all  the  means  that  have  been  used 
to  secure,  in  the  work  of  legislation,  a  due  amount  of 
caution  and  reflection,  the  most  important  is  the  divi- 
sion of  the  legislature  into  two  parts,  creating  thus 
what  is  called  a  two-chambered  or  bicameral  leaislature. 

^  In  reference  to  the   closure  of  debate  in  American  Legislatures, 
see  Hart,  Actual  Government,  §  116. 
^  See  Anson,  Law  and  Custom,  part  i. 


160      THE   STRUCTURE   OF  THE   GOVERNMENT 

It  is  not  meant  that  the  desire  to  avoid  precipitate 
action  is  the  sole  reason  for  establishing  a  legislature 
of  this  sort ;  it  will  presently  be  seen  that  it  often 
serves  other  purposes  as  well,  but  such  is  none  the  less 
the  main  ground  on  which  the  separation  of  the  legisla- 
ture into  two  parts  is  to  be  defended.  At  the  present 
time  the  bicameral  system  is  of  almost  universal  preva- 
lence. The  United  States,  the  United  Kingdom,  France, 
Germany,  and  all  the  chief  countries  of  Europe  have 
bicameral  legislatures.  The  kingdom  of  Greece  alone 
vests  the  legislative  power  in  a  single  chamber  (the 
Bule).  Mexico  and  the  South  American  states  have 
copied  the  United  States  in  establishing  "  congresses  " 
composed  of  senates  and  houses  of  representatives,  in 
some  cases  (as  in  Brazil)  denominated  chambers  of 
deputies.  Even  in  the  subdivisions  of  federal  govern- 
ments the  bicameral  structure  of  the  legislature  is  often 
found.  All  of  the  forty-five  states  of  the  Union  have 
legislatures  consisting  of  a  senate  and  another  house. 
In  Canada  two  of  the  provinces  (Quebec  and  Nova 
Scotia)  have  an  upper  and  a  lower  house,  and  the 
"  states  "  of  the  commonwealth  of  Australia,  and  the 
different  kingdoms,  duchies,  etc.,  which  make  up  the 
German  federation  have  all  double  legislatures.  Japan, 
in  reconstructing  its  government  in  the  light  of  Eu- 
ropean experience  in  1889,  deliberately  set  up  a  bi- 
cameral system. 

The  objections,  indeed,  against  a  unicameral  system 
are  of  overwhelming  force.  "  Of  all  the  forms  of  gov- 
ernment which  are  possible  among  mankind,"  writes 
the  distinguished  historian  W.  E.  H.  Lecky,  "  I  do  not 
know  of  any  which  is  likely  to  be  worse  than  the  gov- 


THE   LEGISLATURE  161 

eminent  of  a  single  omnipotent  democratic  chamber."  * 
Mr.  Lecky  undoubtedly  states  the  case  too  strongly. 
The  fact  remains,  however,  that  the  unicameral  legisla- 
ture has  been  tried  and  found  wanting.  A  single  legis- 
lative house,  unchecked  by  the  revising  power  of  an- 
other chamber  associated  with  it,  proves  itself  rash  and 
irresponsible ;  it  is  too  much  exposed  to  the  influence 
of  the  moment ;  it  is  swayed  by  emotion,  by  passion,  by 
the  influence  of  oratory ;  it  is  liable  to  a  sudden  access 
of  extravagance  or  of  retrenchment.  But  quite  apart 
from  these  more  or  less  psychological  arguments,  there 
are  other  practical  objections  to  a  single  legislature. 
Elected  (in  most  cases)  all  at  the  same  time,  its  mem- 
bers represent  the  opinions  of  the  community  at  a  par- 
ticular moment  and  on  particular  issues.  But  the  lapse 
of  time  and  the  appearance  of  new  public  questions 
may  render  a  legislature  such  as  this  quite  out  of  har- 
mony with  public  opinion  long  before  its  term  has 
expired.  A  somewhat  natural  confusion  of  thought 
tended  in  the  past  to  confound  the  existence  of  a  single 
legislative  chamber  with  the  principle  of  popular  sove- 
reignty, as  if  the  rule  of  the  people  would  not  allow  of 
the  existence  of  a  second  house.  Such  a  confusion  arose 
from  the  historical  fact  that  in  its  origin  the  British 
House  of  Lords  was  an  aristocratic  institution.  As  a 
consequence  of  this,  the  democrats  of  the  French  Rev- 
olution adopted  (1791)  a  legislature  of  a  single  house; 
the  proposal  to  unite  it  with  an  upper  chamber  was 
rejected  in  the  Constituent  Assembly  as  savoring  of 
aristocratic  ideas.  The  same  error  was  committed  in 
1848  in  the  constitution  of  the  second  French  republic. 

^  Democracy  and  Liberty. 


162      THE   STRUCTURE   OF  THE   GOVERNMENT 

The  abortive  German  parliament  of  1848  consisted  of 
a  single  house.  Even  in  the  United  States  unicameral 
legislatures  have  been  tried.  Georgia  and  Pennsylvania 
in  1790,  and  Vermont  in  1836,  successively  abandoned 
the  system  in  favor  of  the  now  universal  double  legis- 
latures. The  idea  that  the  existence  of  a  second  branch 
of  the  legislature  is  not  compatible  with  popular  sove- 
reignty is  indeed  purely  fallacious.  The  two  houses 
may  each  of  them  draw  their  power  from  the  people, 
although  elected  for  different  terms  and  by  different 
districts.  The  division  between  the  two  need  not  in 
any  way  imply  the  existence  of  caste,  or  follow  the  line 
of  the  social  stratification  of  society.  The  senates  of 
the  United  States  and  France  are  obvious  illustrations. 
3.  Composition  of  Upper  Houses.  Granted  the 
need  of  the  existence  of  an  upper  house,  the  next  point 
to  be  considered  is  the  manner  of  its  composition.  It 
may  be  here  incidentally  mentioned  that  the  term 
"  upper  house,"  familiarly  used  to  refer  to  a  particular 
part  of  the  legislature,  is  of  course  at  the  present  day 
a  misnomer.  In  the  matter  of  constitutional  power  the 
so-called  upper  house  is  in  nearly  all  cases  the  weaker 
of  the  two.  The  term  is  merely  a  historic  one ;  for  lack 
of  a  better,  it  is  still  convenient  to  retain  its  use.  The 
composition  of  an  upper  house  may  be  based  on  the 
principles  of  hereditary  office,  of  appointment,  of  elec- 
tion, or  on  a  combination  of  these.  Let  us  consider 
these  different  methods  in  turn.  The  hereditary  prin- 
ciple as  applied  to  the  political  construction  of  the 
future  need  not  be  taken  seriously.  It  is  not  probable 
that  any  civilized  community,  not  already  having  a 
hereditary  legislature,  will  deliberately  bring  one  into 


THE  LEGISLATURE  163 

being.  It  is  true  that  the  principle  was  used  to  some 
extent  in  the  creation  of  the  House  of  Lords  in  Japan 
(1889),  but  rather  as  a  recognition  of  social  and  politi- 
cal differences  already  existing  than  as  a  creation  of 
new  ones.  "  The  idea  of  hereditary  legislators,"  wrote 
Thomas  Paine  in  his  "Rights  of  Man"  (1791),  "is  as 
inconsistent  as  that  of  hereditary  judges,  or  hereditary 
juries,  and  as  absurd  as  an  hereditary  mathematician, 
or  an  hereditary  wise  man,  and  as  ridiculous  as  an 
hereditary  poet-laureate."  It  is  one  thing,  however,  to 
object  to  the  hereditary  principle  in  the  construction  of 
a  new  legislature,  and  another  to  demand  its  abolition 
where  it  already  exists.  In  many  covmtries  it  has  had 
its  origin  in  the  historic  evolution  of  the  government,  it 
corresponds  to  the  social  distinctions  which  exist  as  an 
undeniable  fact  in  the  structure  of  the  community,  and  it 
operates  on  the  whole  fairly  well.  Such  is  undoubtedly 
the  case  with  the  British  House  of  Lords.  There  is  at 
present  no  very  intense  opposition  to  the  continued  ex- 
istence of  the  house :  true,  the  radicals  and  the  socialists 
demand  its  abolition,  and  many  liberals,  such  as  Lord 
Rosebery  and  Mr.  Gladstone,  have  threatened  it  with 
reform.  But  the  opposition  to  it  from  the  liberals  has 
arisen  rather  from  the  fact  that  the  House  of  Lords  is 
overwhelmingly  and  hopelessly  conservative  than  from 
repugnance  to  the  nature  of  its  structure. 

The  British  House  of  Lords  is  based,  indeed,  on  the 
hereditary  principle  to  a  larger  extent  than  any  exist- 
ing legislature.  It  contains  in  all  about  six  hundred 
members  (the  number  varying  through  deaths  and  new 
creations  of  peerages).  Of  these  only  four  are  mem- 
bers appointed  for  life,  —  the  four  eminent  jurists  who 


164      THE   STRUCTURE   OF  THE  GOVERNMENT 

are  created  lords  of  appeal,  to  supply  the  House  with 
proper  legal  knowledge  when  sitting  as  a  court,  — 
twenty-six  are  archbishops  and  bishops  of  the  Estab- 
lished Church,  sixteen  are  elected  by  the  Scotch  peers 
from  among  their  number,  twenty-eight  are  elected  by 
the  Irish  peers,  and  the  rest  are  the  members  of  the 
peerage  of  the  United  Kingdom.  The  creation  of  a 
peerage  carries  with  it  the  hereditary  right  to  a  seat 
in  the  House  of  Lords,  nor  has  the  crown  the  power  to 
make  life  appointments  other  than  the  four  mentioned 
above.  The  Continental  legfislatures  which  make  use 
of  the  hereditary  principle  apply  it  only  in  a  partial 
degree  to  the  composition  of  the  upper  house.  Along 
with  the  princes  of  the  blood  and  the  hereditary  mem- 
bers, there  are  included  a  large  number  of  members 
appointed  by  the  crown  for  life  only.  This  is  the  case 
with  Prussia,  Austria,  Hungary,  and  Spain.  But  of 
these  it  is  only  in  Hungary  that  the  hereditary  peers 
form  a  majority  of  the  house.  In  Spain  and  Austria 
a  representation  is  also  given  to  the  Roman  Catholic 
Church ;  in  Hungary  the  Greek,  Protestant,  and  Ro- 
man Catholic  churches  are  all  i-epresented  in  the  upper 
house ;  the  clerical  representation  is  in  all  cases  very 
much  in  the  minority.  The  Prussian  House  of  Lords 
includes  a  number  of  elected  members  representing  the 
land-owners,  together  with  representatives  of  the  uni- 
versities, the  mayors  of  towns  of  over  fifty  thousand 
people,  etc.  Spain  has  also  a  large  number  of  elected 
"  senators,"  representing  the  commercial  and  provincial 
states,  the  universities,  etc.  It  is  to  be  observed  that 
even  in  cases  where  the  hereditary  seats  are  deliber- 
ately granted  to  the  nobles  under  a  modern  constitu- 


THE   LEGISLATURE  165 

tlon  (as  in  Prussia,  1850,  Spain,  1876),  they  really 
represent  a  continuation  of  tlie  peculiar  civil  and  po- 
litical privileges  (rights  of  local  government,  feudal 
dues,  immunity  from  taxes,  etc.)  formerly  enjoyed  by 
the  nobles,  or  a  compensation  for  the  loss  of  the  same. 
The  hereditary  portion  of  the  legislature  is  thus  every- 
where to  be  regarded  only  as  a  survival  of  the  past. 
There  are  no  hereditary  members  in  the  upper  houses 
of  France,  Switzerland,  the  Netherlands,  Denmark, 
Belgium,  Norway,  Sweden,  Italy,  excepting  only,  in 
the  latter  case,  the  princes  of  the  royal  family. 

In  many  legislatures  the  seats  in  the  upper  house, 
or  at  any  rate  in  a  part  of  it,  are  neither  held  by  a 
hereditary  tenure  nor  filled  by  election.  The  members 
are  appointed  to  their  office,  the  nominations  being 
made  almost  invariably  by  the  executive  government. 
Such  a  system,  though  at  first  sight  repugnant  to  the 
idea  of  popular  government,  has  a  great  deal  in  its  favor. 
Experience  has  shown  that  the  process  of  popular  elec- 
tion does  not  always  result  in  the  selection  of  the  ablest 
and  most  upright  men  of  the  country.  Election  is  apt 
to  favor  the  candidates  who  possess  in  a  high  degree 
the  more  popular  arts,  who  have  a  readiness,  or  even 
a  ready  buffoonery  in  speech,  who  are  not  sensitive  to 
political  abuse,  and  who  have  a  reputation  (military, 
for  example)  calculated  to  appeal  to  the  imagination 
of  the  crowd.  It  does  not  follow  that  these  men, 
when  elected,  are  the  best  suited  for  the  legislative 
office.  There  are  in  every  community  many  men  of 
very  great  talent,  conspicuous  perhaps  in  science  or 
literature,  who  would  never  be  elected  at  the  polls,  who 
would  probably  hesitate  to  offer  themselves  as  candi- 


166      THE   STRUCTURE   OF  THE  GOVERNMENT 

dates,  and  who  nevertheless  are  admirably  fitted  both 
by  their  intellect  and  their  character  for  a  seat  in  the 
legislature.  The  system  of  appointment  renders  it  pos- 
sible, in  theory  at  least,  for  men  of  this  class  to  be 
selected.  This  is  the  principle  that  is  aimed  at  in  the 
nominations  to  the  senate  of  Italy,  where  the  condition 
obtains  that  the  person  nominated  must  either  have 
filled  a  high  office,  or  have  acquired  fame  in  literature, 
science,  or  some  other  pursuit  tending  to  the  benefit  of 
the  nation.  Many  of  the  Continental  legislatures,  as  al- 
ready seen,  admit  of  a  partial  construction  of  the  upper 
house  on  this  plan.  The  system  of  nomination  is  seen 
in  its  entirety  in  the  senate  of  the  kingdom  of  Italy 
and  in  the  senate  of  the  Dominion  of  Canada.  In 
Italy  all  the  senators,  exclusive  of  the  members  of  the 
royal  family,  are  nominated  for  life  by  the  king,  and 
are  selected  out  of  the  following  classes,  —  bishops, 
high  officials,  members  of  the  lower  house  after  three 
terms  of  service,  members  of  the  Royal  Academy  of 
Science,  those  who  pay  six  hundred  dollars  a  year  or 
more  in  taxes,  and  men  who  have  benefited  the  nation 
in  literature,  art,  etc.  In  Canada  the  senate  is  com- 
posed of  members  nominated  for  life  by  summons  of 
the  Governor  General,  the  total  number  and  the  num- 
ber from  each  province  being  limited.  Experience  has 
unfortunately  shown  that  nominated  senates  are  bet- 
ter in  theory  than  in  fact.  The  difficulty  encountered 
in  practice  is  that,  whatever  may  be  the  nominal  con- 
stitutional power  of  such  a  senate,  it  is  in  reality  un- 
able to  act  as  a  counterbalancing  force  to  the  house 
elected  by  the  people.  The  senate  of  Italy  is  a  feeble 
body,  and  can  offer  no  real  ojjposition  to  the  Chamber 


THE   LEGISLATURE  167 

of  Deputies.  In  Canada  also  the  parliamentary  life 
and  parliamentary  power  are  centred  in  the  House  of 
Commons. 

It  remains  to  consider  the  system  of  election  as  ap- 
plied to  the  composition  of  upper  houses.  This  is  the 
method  used,  either  in  direct  or  indirect  form,  in  the 
United  States,  both  in  the  federal  and  state  govern- 
ments, in  Mexico,  Cuba,  and  the  other  Latin  American 
republics,  in  France,  Belgium,  and  the  commonwealth 
of  Australia.  The  difHculty  encountered  here  at  the 
outset  is  the  danger  of  making  the  upper  house  a  mere 
reduplication  of  the  lower,  which  would  serve  but  little 
purpose,  and  might  lead  to  a  chronic  constitutional 
deadlock.  Various  means  are  taken  to  overcome  this 
difficulty.  In  the  first  place,  in  a  federal  government, 
especially  since  the  example  set  by  the  United  States 
in  1787,  the  problem  may  be  said  to  solve  itself :  the 
upper  house  may  be  made  especially  representative  of 
the  units  of  the  federation,  the  lower  house  may  repre- 
sent the  people  at  large  on  a  basis  of  population.  Thus 
there  are  in  the  United  States  two  senators  for  each 
state,  in  Cuba  four  senators  for  each ;  the  senate  of 
Brazil  has  three  from  each  state,  and  the  Australian 
senate  is  similarly  composed.  In  the  German  federal 
government  the  constituent  parts  of  the  federation  are 
represented  in  the  Bundesrath,  not  exactly  on  a  foot- 
ing of  equality,  nor  yet  in  proportion  to  population ; 
even  the  smallest  have  one  vote  each,  and  Prussia,  the 
largest,  has  only  seventeen  votes.  In  all  these  cases 
the  representation  in  the  lower  house  is  according  to 
population.  This  is  an  extremely  useful  device,  as  it 
renders  a  federation  possible  between  units  of  differ- 


168      THE   STRUCTURE  OF  THE  GOVERNMENT 

ent  sizes,  the  smaller  of  which  would  be  too  jealous  o£ 
the  larger  to  enter  a  union  on  a  basis  of  representa.- 
tion  purely  proportionate  to  numbers,  while  the  larger 
states  would  be  unwilling  to  accept  a  federation  on 
terras  of  complete  equality  with  the  smaller  ones. 

A  further  method  of  distinguishing  the  two  houses 
is  found  in  varying  the  system  of  election  and  adopt- 
ing a  direct  election  for  the  lower  house,  and  indirect 
for  the  upper.  This  is  best  seen  in  the  case  of  France. 
The  Chamber  of  Deputies  is  elected  by  direct  universal 
suffrage  from  districts  of  (approximately)  equal  pop- 
ulation. The  election  of  the  senate  is  indirect,  and 
is  made  by  an  "  electoral  college,"  in  each  department 
of  France,  consisting  of  the  deputies,  councilors-gen- 
eral and  district  councilors  (membex's  of  the  councils 
for  local  government),  and  representatives  from  the 
municipal  council  of  every  commune  :  the  latter  class 
form  a  large  majority  of  the  total  college.  The  origi- 
nal intention  was  to  make  the  senate  especially  repre- 
sentative of  the  organic  life  of  the  commune,  or  parish, 
while  the  deputies  should  represent  the  nation  at  large. 
Indirect  election  is  also  used  in  the  United  States, 
where  the  United  States  senators  are  elected  by  the 
state  legislatures.  In  the  state  governments  the  sena- 
tors are  elected  by  the  people,  the  election  district 
being,  however,  different  from  that  used  for  elections 
to  the  Assembly.  In  addition  to  the  difference  in  the 
manner  of  elections,  a  differentiation  can  be  made  by 
the  use  of  different  electoral  districts  for  the  two 
houses,  as  already  indicated,  by  adopting  terms  of 
office  of  different  length,  and  by  the  system  of  partial 
renewal.    For  exam2)le,  a  United  States   senator  sits 


THE  LEGISLATURE  169 

for  six  years,  a  member  of  the  House  of  Representa- 
tives only  for  two ;  in  France,  while  the  deputies  have  a 
four  years'  term,  a  senator  sits  for  nine  years.  Simi- 
larly in  the  United  States,  one  third  of  the  Senate  is 
renewed  every  two  years  ;  in  France  and  in  the  Nether- 
lands, one  third  of  the  upj^er  house  is  renewed  every 
three  years.  This  method  of  partial  renewal  is  of  par- 
ticular efficacy  and  importance.  It  lends  a  character 
of  permanency  and  stability  to  the  upper  house,  which 
offsets  the  tendency  of  the  lower  one  to  a  too  complete 
change  of  membership  and  of  sentiment  as  the  result 
of  a  general  election. 

4.  Distribution  of  Po^ver  between  the  Two 
Houses.  So  much  for  the  question  of  the  composition 
of  the  two  houses ;  let  us  turn  now  to  consider  the  rel- 
ative degree  of  jDOwer  to  be  intrusted  to  them.  The 
usual  practice  is  that  the  two  houses  are,  in  almost  all 
matters  of  legislation,  equal  and  cijordinate  ;  either 
house  may  originate  a  bill,  and  no  bill  thus  originated 
can  become  law  without  the  consent  of  the  other  house. 
Either  house,  too,  may  propose  amendments  to  a  bill, 
which  will  only  become  valid  by  receiving  the  consent 
of  the  other.  To  this  general  rule  there  is  one  most 
notable  exception.  In  the  case  of  bills  referring  to  the 
raising  and  spending  of  money,  the  powers  of  the  upper 
house  in  most  of  the  chief  states  of  the  world  are  more 
or  less  limited.  For  this  different  reasons  are  assisfned, 
in  part  historical,  in  part  rational.  Historically  we 
may  consider  this  to  have  come  about  in  imitation  of 
the  relation  existing  between  the  House  of  Lords  and 
the  Commons  in  England,  where  the  power  of  the  purse 
ever  since  the  fourteenth  century  has  been  vested  ex- 


170      THE   STRUCTURE   OF  THE   GOVERNMENT 

clusively  in  the  commons.^  But  it  hardly  seems  correct 
to  regard  this  almost  universal  restriction  on  the  power 
of  uj)per  houses  as  merely  an  accidental  adaptation. 
There  seems  excellent  reason  for  it  as  well.  In  the  case 
of  most  of  the  bills  introduced  in  a  legislature  no  great 
harm  ensues  if  the  proposals  of  one  house  are  rejected 
by  the  'other ;  matters  merely  remain  where  they  were 
before.  But  in  the  matter  of  money  bills  the  case  is 
different :  if  no  bill  is  passed  for  the  raising  and  spend- 
ing of  money  the  public  service  will  come  to  a  full  stop. 
It  therefore  seems  wiser  to  make  the  wishes  of  one 
house  more  or  less  decisive  in  the  matter ;  and  of  the 
two,  the  house  more  directly  and  proportionately  repre- 
senting the  people  appears  to  be  the  natural  one  to  in- 
trust with  this  power.  The  disability  thus  laid  on  the 
upper  house  in  matters  of  finance  varies  in  different 
legislatures.  It  is  most  complete  in  the  case  of  the 
British  House  of  Lords.  This  body,  by  the  custom 
of  the  constitution,  has  no  power  to  originate,  amend, 
or  reject  a  bill  for  the  raising  or  spending  of  money. 
Other  houses,  as  is  the  case  with  the  House  of  Lords  in 
Prussia,  and  the  first  chamber  in  the  Netherlands, 
while  forbidden  to  originate  or  amend  money  bills,  are 
empowered  to  reject  them  en  hloc.  France  offers  a 
doubtful  case ;  the  senate  is  forbidden  to  originate 
measures  of  finance  and  has  certainly  power  to  reject 
them,  but  the  question  of  its  right  to  amend  is  a  consti- 
tutional point  not  yet  clearly  settled.-  The  Senate  of 
the  United  States  represents  a  higher  step  in  the  as- 

^  Taswell-Langmead,    Constitutional  Ilistori/,  chap.  viii. 
2  Lowell,  Government  and  Parties ;  Simonet,  Traitd  EUmentaire  du 
Droit  Public. 


THE  LEGISLATURE  171 

cendiDg  series  of  powers.  "  All  bills  for  raising  revenue," 
says  the  Constitution  (art.  i,  §  7),  "  shall  originate  in 
the  House  of  Representatives,  but  the  Senate  may  pro- 
pose or  concur  with  amendments  as  on  other  bills."  In 
reality  this  amending  power  is  used  by  the  Senate  with 
such  latitude  as  to  render  the  two  houses  in  their  legis- 
lative capacity  what  Mr.  Bryce  has  called  "  really  equal 
and  coordinate."  In  a  few  cases,  in  the  federal  legisla- 
ture of  the  German  Empire  and  in  Switzerland,  the  two 
houses  are  legally  on  a  footing  of  equality  in  regard 
to  money  bills.  In  Austria  an  ingenious  expedient  is 
added  for  preventing  the  disagreement  of  the  two  houses 
from  stopping  the  wheels  of  government.  It  is  part  of 
the  fundamental  law  that  if  the  two  houses,  even  after 
consultation,  can  reach  no  agreement  in  regard  to  a 
financial  measure,  then  the  lower  sum  of  money  voted 
(by  either  house)  is  considered  as  granted. 

In  all  matters  other  than  money  bills  it  is  usual  that 
the  two  houses  are  on  a  footing  of  equality  as  far  as 
the  law  of  the  constitution  is  concerned.  But  in  practice 
it  generally  happens  that  the  lower  house  is  decidedly 
the  "  predominant  partner  ;  "  in  the  case  of  a  conflict 
between  the  two,  public  opinion  is  generally  in  favor  of 
the  house  which  more  immediately  stands  for  the  vote 
of  the  people,  and  circumscribes  to  a  large  extent  the 
resistance  that  can  be  offered  by  the  upper  house  to  the 
more  popular  body.  This  is  the  explanation  of  the  rel- 
atively feeble  power  of  the  senates  of  France,  Italy, 
and  Canada.  The  cases  of  the  German  Bundesrath 
and  the  American  Senate,  which  enjoy  a  power  practi- 
cally gi'eater  than  that  of  the  lower  house,  are  quite 
exceptional.   The  Senate  of  the  United  States  owes  its 


172      THE   STRUCTURE   OF  THE  GOVERNMENT 

extensive  power  partly  to  its  federal  character,  by  virtue 
of  which  it  represents  the  states  in  their  separate  ca- 
pacity, partly  to  the  length  of  the  senatorial  term,  and 
in  part  also  to  its  historical  antecedents,  and  the  tra- 
ditions of  political  weight  and  stability  which  it  has 
acquired.  The  constitutional  relations  existing  by  the 
custom  of  the  country  between  the  Lords  and  Conunons 
of  the  United  Kingdom  are  quite  unique.  It  is  only 
to  be  expected  that  the  House  of  Lords,  no  part  of 
which  is  elected  by  the  people  either  directly  or  in- 
directly, should  be  able  to  offer  only  a  limited  resistance 
to  the  Commons  even  in  matters  that  are  not  financial. 
The  constitutional  relation  of  the  two  houses  is  thus 
stated  by  Mr.  Dicey  in  his  "  Law  of  the  Constitution : " 
"  If  there  is  a  difference  of  opinion  between  the  House 
of  Lords  and  the  House  of  Commons,  the  House  of 
Lords  ought  at  some  point  (not  definitely  fixed)  to  give 
way;  and  should  the  Peers  not  yield,  and  the  House 
of  Commons  continue  to  enjoy  the  confidence  of  the 
country,  it  becomes  the  duty  of  the  Crown,  or  of  its 
responsible  advisers,  to  create,  or  threaten  to  create, 
enough  new  Peers  to  override  the  opposition  of  the 
House  of  Lords,  and  thus  restore  harmony  between  the 
two  branches  of  the  legislature."  By  the  "  confidence 
of  the  country  "  is  meant  the  endorsation  of  the  conduct 
of  the  Commons,  or  more  correctly  of  the  majority  in 
the  Commons,  by  the  people  voting  in  a  general  election 
on  the  issue  involved.  This  constitutional  relation  is 
sometimes  briefly  stated  by  saying  that  the  Lords  have 
no  right  to  oppose  the  Commons  on  the  issue  on  which 
the  Commons  were  elected.  The  precedent  involved  was 
established  by  the  passage  of  the  Reform  Bill  of  1832. 


THE   LEGISLATURE  173 

The  Lords  insisted  on  opposing  the  measure  even 
though  a  dissolution  of  Parliament  resulted  in  the  elec- 
tion of  a  new  House  of  Commons  overwhelmingly  in 
support  of  parliamentary  reform.  The  written  threat 
of  the  king  (William  IV)  to  create  peers  in  favor  of 
the  bill,  forced  the  Lords  to  withdraw  their  opposition. 
In  accordance  with  this  precedent  the  Lords  have  found 
themselves  several  times  compelled  to  waive  their  legal 
right  of  resistance  to  the  Commons.  The  bills  for  the 
repeal  of  the  corn  laws  (1846)  and  for  the  disestablish- 
ment of  the  Irish  Church  (1869)  are  cases  in  point. 
That  the  precedent  has  not  altogether  shattered  the 
constitutional  power  of  the  Lords  is  seen  in  their  rejec- 
tion of  Mr.  Gladstone's  Home  Rule  Bill  (1893).  In  spite 
of  the  fact  that  they  were  opposing  a  House  of  Com- 
mons elected  directly  on  the  question  of  home  rule,  the 
Lords  threw  out  the  bill ;  it  was  argued  in  support  of 
their  action  that  though  the  electorate  had  spoken  in 
favor  of  home  rule,  they  had  not  indorsed  this  partic- 
ular bill,  which  had  not  yet  been  made  public  at  the 
time  of  the  election.  A  further  argument  was  found  in 
the  fact  that  the  bill  had  been  forced  through  the 
Commons  by  means  of  the  closure,  which  had  perhaps 
unduly  abbreviated  debate. 

Whatever  arrangements  may  exist,  either  legal  or 
customary,  there  always  remains  in  the  background  the 
danger  of  conflict  or  even  of  an  actual  deadlock  between 
the  two  houses.  In  most  legislatures,  as  for  instance  in 
the  Congress  of  the  United  States  and  in  the  Parlia- 
ment of  the  United  Kingdom,  this  danger  is  lessened 
by  the  system  of  conferences  between  representatives 
of  each  house.    In  the  Congress,  when  the  houses  are 


174      THE   STRUCTURE   OF  THE   GOVERNMENT 

unable  to  agree  over  amendments,  three  members  of 
the  Senate  are  appointed  to  confer  with  three  members 
of  the  House  of  Representatives,  with  a  view  to  arran- 
ging a  compromise.  Although  sei'ious  differences  of 
opinion  have  often  existed  between  the  two  houses  of 
Congress,  the  possibility  of  an  actual  deadlock  bringing 
the  legislative  machinery  to  a  standstill  is  not  one  of 
the  special  dangers  in  the  American  system.  Beyond 
the  plan  of  committees  of  conference  there  is  no  legal 
machinery  for  forcing  an  agreement  between  the  two 
houses.  The  case  is  quite  different  with  the  newly 
made  constitution  of  the  commonwealth  of  Australia. 
Australian  legislatures,  especially  the  legislatures  of 
Victoria,  have  experienced  the  very  serious  dangers 
that  may  be  threatened  by  the  obstinate  disagreement 
of  the  upper  and  lower  house. ^  As  a  result  of  the 
difficulties  that  have  thus  arisen,  the  new  constitution 
of  the  commonwealth  contains  in  consequence  provi- 
sions that  are  intended  to  render  impossible  a  complete 
deadlock  in  the  federal  legislature.  The  Governor 
General  is  empowered  in  the  event  of  the  House 
presenting  and  re-presenting  a  bill,  and  the  Senate  per- 
sistently rejecting  it,  to  dissolve  both  houses  simulta- 
neously. If  after  a  new  election  the  same  situation 
persists,  the  governor  may  convene  a  joint  sitting,  the 
vote  in  which  is  final. ^ 

5.  Direct  Legislation;  the  Initiative  and  the 
Referendum.  As  a  conclusion  to  our  discussion  of 
the  legislature  and  the    legislative    process,  we    may 

^  For  an  account  of  the  experience  of  Victoria  in  this  connection, 
and  the  political  crisis  of  1877,  see  Edward  Jenks,  Government  of  Vic- 
toria,  part  iv,  chap,  xxxiii. 

2  Commonwealth  Act,  §  .57. 


THE   LEGISLATURE  175 

briefly  advert  to  what  is  called  direct  legislation,  or  the 
making  of  laws  by  means  of  the  action  of  the  people 
themselves.  That  the  whole  of  the  people,  or  at  any 
rate  of  the  voters,  should  participate  in  the  process  of 
legislation  seems  in  a  sense  the  embodiment  of  the  idea 
of  democratic  self-government.  Rousseau  regarded  it 
as  the  only  true  expression  of  popular  sovereignty.  In 
some  form  or  other  it  has  been  known  since  the  earliest 
historical  times.  At  Athens  there  existed  the  Ecclesia, 
an  assembly  of  all  the  free  citizens,  erected  by  Solon 
in  the  sixth  century  b.  C.  into  an  organ  of  general  po- 
litical control.  In  it  the  citizens  decided  on  questions 
of  peace  and  war,  and  voted  on  matters  laid  before 
them  by  the  Council  of  Four  Hundred.  The  Eomans 
also  had  their  Comitia  Trihuta^  or  meeting  of  the  peo- 
ple by  tribes,  which  became  in  the  latter  days  of  the 
republic  a  lawmaking  assembly.  In  the  smaller  can- 
tons of  Switzerland  the  Landesgemeinde,  or  gathering 
of  the  people,  has  acted  from  time  immemorial  as  a 
legislative  body.  Such  organs  of  government  were  ren- 
dered possible  in  the  city  states  of  the  classical  world, 
and  in  the  cantons  of  Switzerland,  by  reason  of  their 
restricted  territorial  extent.  In  the  larger  states  of  the 
world  an  actual  gathering  of  the  people  is  a  physical 
impossibility.  The  sovereignty  of  the  people  has  worked 
itself  out  by  means  of  representative  assemblies.  But 
at  the  present  day  the  growth  of  rapid  communication 
by  post  and  telegraph  renders  it  possible  to  have  re- 
course to  some  extent  to  the  whole  body  of  the  citizens 
in  the  making  of  the  law  ;  the  people  of  a  great  state 
cannot.  It  Is  true,  be  all  gathei-ed  together  In  one  place 
in  a  deliberative  capacity,  but  it  is  possible  for  them  all 


176      THE  STRUCTURE  OF  THE  GOVERNMENT 

at  one  aud  the  same  time  to  give  their  vote  upon  any 
measure  proi)osed.  The  system  of  direct  legislation 
which  is  thus  rendered  possible  has  been  favored  by 
the  growing  distrust  of  representative  legislatures  which 
is  noticed  in  so  many  democratic  countries  at  the  pre- 
sent day.  There  is  an  increasing  tendency  to  rely  on 
the  general  will  of  the  whole  people  as  expressed  in 
a  direct  vote.  "  The  people,"  says  Professor  Goldwin 
Smith,  "  cannot  be  lobbied,  wheedled,  or  bulldozed  ; 
the  people  is  not  in  fear  of  its  reelection  if  it  throws 
out  something  supported  by  the  Irish,  the  Prohibition- 
ist, or  the  Methodist  vote."  As  against  this  contention 
it  may  properly  be  advanced  that  the  making  of  laws 
requires,  like  every  other  task  of  importance,  a  special 
training  and  experience,  and  that  the  interests  of  the 
people  are  really  safer  in  the  hands  of  carefully  chosen 
legislatures  than  when  submitted  to  the  hazards  of 
a  popular  vote.  The  fact  that  in  every  community  a 
large  proportion  of  the  citizens  are  of  necessity  too 
much  absorbed  in  their  own  affairs  to  be  able  to  prop- 
erly consider  the  public  questions  submitted  to  them,  is 
also  of  considerable  weight.  Rightly  or  wrongly,  how- 
ever, legislation  by  the  people  is  already  used  to  a  con- 
siderable extent.  It  assumes  several  forms.  Of  these 
the  most  important  is  the  referendum,  or  submission  to 
the  popular  vote  of  a  proposed  measure  or  constitu- 
tional change  which  becomes  law  if  ratified  by  the  re- 
quired majority.  The  initiative  means  the  legal  right 
of  the  people,  acting  by  petition  and  in  sufficient  num- 
ber, to  cause  a  legislative  measure  to  be  brought  to  a 
popular  vote.  There  is  finally  what  may  best  be  called 
the  plebiscite,  or  vote  of  the  people  used  merely  as  an 


THE  LEGISLATURE  177 

expression  of  opinion  without  binding  force,  and  in- 
tended as  a  guide  to  the  policy  of  the  government.  It 
is  in  Switzerland  more  than  anywhere  else  that  direct 
legislation  is  in  use.  Of  the  nineteen  cantons  and  six 
half-cantons  which  form  the  federation,  two  cantons 
and  four  half-cantons  still  preserve  the  mimemorial 
Landesgemeinde,  or  mass  meeting,  already  referred  to. 
In  Uri,  for  example  (of  which  the  total  population  is 
19,700},  the  people  meet  once  a  year  in  a  large  meadow, 
where  they  vote  taxes,  pass  laws,  and  elect  their  execu- 
tive officers  for  the  coming  year.  Even  in  the  cantons 
which  have  representative  legislatures  the  referendum 

—  the  submission  of  the  laws  to  the  vote  of  the  people 

—  is  largely  used.  In  about  half  of  them  it  is  "  op- 
tional," employed,  that  is  to  say,  only  when  called  for 
by  petition.  In  all  the  rest  (except  Freiburg)  it  is  "  ob- 
ligatory," and  must  be  used  for  all  legislative  measures 
of  importance.  In  all  the  cantons  changes  in  the  con- 
stitution can  only  be  made  if  ratified  by  the  pojjular 
vote.  The  initiative,  or  right  of  the  people  to  intro- 
duce laws  by  petition,  is  of  more  modern  creation,  hav- 
ing been  first  introduced  into  the  constitutions  of  the 
cantons  in  the  middle  of  the  nineteenth  century.  It  is 
permissible  at  present  in  all  but  three  of  the  cantons 
for  ordinary  measures  of  law,  and  in  all  but  one  for 
constitutional  changes.  In  the  federal  government  of 
Switzerland  the  referendum  is  compulsory  for  an 
amendment  of  the  constitution.  There  is  also  an  op- 
tional referendum,  requiring  the  submission  of  ordinary 
laws  to  the  jDcople  if  called  for  by  thirty  thousand  citi- 
zens or  eight  cantons.  The  initiative  in  the  shape  of  a 
proposal  supported  by  fifty  thousand  voters   also  exists 


178      THE  STRUCTURE  OF  THE  GOVERNMENT 

ill  the  federal  government ;  though  nominally  admissible 
only  on  constitutional  amendments  it  can  in  practice  be 
applied  to  any  measure  by  giving  it  the  form  of  a  change 
in  the  constitution.  That  this  system  thus  established 
is  of  great  practical  importance  in  the  government  of 
Switzerland  is  seen  from  the  fact  that  between  April, 
1874,  and  October,  1896,  no  less  than  thirty-eight  pop- 
ular votes  were  taken.  Unfortunately  it  is  impossible 
to  draw  any  general  conclusion  as  to  the  utility  of 
direct  legislation  from  the  experience  of  Switzerland, 
as  its  critics,  both  in  and  out  of  that  country,  are  much 
divided  in  opinion,' 

In  the  United  States,  direct  legislation,  though  not 
always  referred  to  by  that  name,  exists  to  a  consider- 
able extent.  There  is  in  the  first  place  a  historic  form 
of  it  in  the  shape  of  the  New  England  "  town  meet- 
ing," or  assembly  of  the  electors  of  the  township. 
This  is  almost  a  counterpart  of  the  Landesgemeinde  of 
Switzerland.  The  voters  come  together  in  a  mass  meet- 
ing once  a  year  (and  on  special  occasions  if  called  for 
by  petition)  and  not  only  elect  the  "  select  men"  or 
officers  of  the  township,  but  also  vote  on  the  raising  of 
taxes,  the  spending  of  money,  and  on  other  local  ques- 
tions. The  town  meeting  is  an  instance  of  direct 
legislation  of  the  purest  type,  inasmuch  as  it  permits  of 
discussion  as  well  as  voting  in  the  mass  meeting.^  An- 
other form  of  direct  legislation  is  seen  in  the  ratifica- 
tion by  the  people  of  changes  in  the  Constitution,  a 
system  now  practically  universal  in  the  United  States. 

^  The  most  complete  authority  on  the  subject  is  Deploige,  The  Befer- 
endum  in  Switzerland. 

2  For  details  as  to  the  New  Eng^land  town  meeting  past  and  present 
see  Fiske,  Civil  Government  in  the  United  States,  chap.  ii. 


THE  LEGISLATURE  179 

The  constitutions  of  many  of  the  states  make  a  still 
further  use  of  the  principle.  As  has  already  been  seen, 
the  power  of  the  state  legislature  is  often  restricted  by 
a  constitutional  provision  requiring-  certain  kinds  of 
statutes  to  be  submitted  to  a  popular  vote.  The  con- 
stitution of  Pennsylvania  (1873),  for  example,  declares 
that  "  no  law  changing  the  location  of  the  capital  of 
the  State  shall  be  valid  until  the  same  be  submitted  to 
the  qualified  electors  of  the  commonwealth  at  a  general 
election,  and  ratified  and  approved  by  them."  ^  Simi- 
lar provisions  in  regard  to  altering  the  location  of  the 
capital  are  found  in  the  constitution  of  many  other 
states.  In  the  same  way  a  clause  of  the  Iowa  constitu- 
tion of  1846  (adopted  later  in  the  constitutions  of  New 
York,  California,  Illinois,  and  a  number  of  western 
states)  provides  that  laws  for  the  contraction  of  debt 
(with  certain  exceptions)  must  be  submitted  to  the 
people.  In  many  states,  too,  the  raising  of  taxes  be- 
yond a  stipulated  limit  can  only  be  effected  by  means 
of  a  popular  vote.  Of  other  matters  treated  in  this  way 
the  alienation  of  public  property,  the  creation  of  banks, 
and  the  extension  of  the  franchise  to  women  may  be 
cited.  The  popular  votes  by  which  female  suffrage 
was  rejected  in  South  Dakota  (1898),  in  Washington 
(1898),  and  in  Oregon  (1900)  were  of  this  nature. 
Direct  legislation  is  also  found  in  the  form  of  a  "  muni- 
cipal referendum  "  in  which  the  people  of  a  county  or 
town  vote  on  the  question  of  the  location  of  the  county 
seat,  the  contraction  of  a  local  debt,  or  the  adoption  of 
a  city  charter.  The  system  is  decidedly  growing  in 
favor,  especially  in  the  western  part  of  the  Union,  and 

^  Coustitution,  art.  iii,  §  28. 


180      THE   STRUCTURE   OF   THE  GOVERNMENT 

profits  by  the  distrust  with  which  the  state  legislatures 
are  often  viewed  by  the  people  at  large.  The  Populist 
party  in  its  national  convention  at  St.  Louis,  in  1896, 
expressed  itself  in  favor  of  the  use  of  both  initiative 
and  referendum  ;  the  same  demand  was  repeated  in 
the  platforms  of  both  sections  of  the  party  in  1900, 
and  at  the  Springfield  convention  of  the  party  in  1904. 
Present  indications  seem  to  sliow  that  direct  legislation 
is  destined  to  play  a  considerable  part  in  the  American 
system  of  government. 

READINGS  SUGGESTED 
Lecky,  W.  H.,  Democracy  and  Liberty  (1896),  vol.  i,  chap.  iv. 
Low,  S.,  Governance  of  England  (1904). 
Bryce,  J.,  American  Commonwealth  (1889),  vol.  i,  chaps,  i-xx. 

FURTHER  AUTHORITIES 
The  Statesman's  Year  Book  (annual). 
Anson,  Sir  W.,  Law  and  Custom  of  the  Constitution,  part  i  (2d 

edition,  1896). 
Hart,  A.  B.,  Actual  Government  (1903). 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897). 
Simonet,  Traits  Eldmentaire  de  Droit  Public  et  Administratif 

(3d  edition,  1897). 
Dicey,  A.  V.,  Law  of  the  Constitution  (4th  edition,  1893). 
Macy,  J.,  English  Constitution  (1897). 
Wilson,  W.,  The  State  (2d  edition,  1901). 
Vincent,  J.  M.,  Government  in  Switzerland  (1900). 
Wilson,  W.,  Congressional  Government  (2d  edition,  1901). 
Deploige,  S.,  The  Referendum  in  Switzerland  (translation,  1898). 
Ilbert,  Sir  Courtenay,  Legislative  Methods  and  Forms  (1901). 


CHAPTER  III 

THE  EXECUTIVE 

1.  Concentration  of  Authority  the  first  Requisite  of  the  Executive.  — 
2.  Methods  of  Appointment ;  Hereditary  Executives.  —  3.  Elective 
Executives.  —  4.  Presidential  and  Parliamentary  Government.  — 
5.  Subordinate  Officials  of  the  Executive ;  the  Civil  Service. 

1.  Concentration  of  Authority  the  First  Requi- 
site of  the  Executive.  The  term  executive  is  used 
to  designate  those  officers  of  the  government  whose 
business  it  is  to  "  execute  "  or  carry  out  the  law  of  the 
land.  In  the  narrower  sense  it  often  signifies  merely 
the  supreme  head  of  the  administration,  as  the  Presi- 
dent of  the  United  States,  or  the  same  person  to- 
gether with  his  chioJt  subordinates.  Thus  when  we 
speak  of  the  "  executive  "  of  the  French  Republic,  we 
refer  to  the  president,  or  perhaps  to  the  president 
together  with  the  prime  minister  and  cabinet.  But  the 
word  has  also  a  wider  signification,  in  which  it  means 
the  entire  staff  of  officials,  high  and  low,  who  are  con- 
cerned with  the  administration  of  public  affairs.  This 
does  not,  of  course,  include  persons  acting  in  a  legisla- 
tive or  judicial  capacity,  but  comprises  all  such  public 
servants  as  postmasters,  revenue  officers,  sheriffs,  in- 
spectors, commissioners,  etc.  Occasionally  even  the 
army  and  the  navy  are  included  in  this  usage  of  the 
term.  In  the  following  chapter  the  word  executive  will 
be  used  in  the  narrower  sense  except  where  otherwise 
indicated. 


182      THE   STRUCTURE   OF  THE   GOVERNMENT 

The  first  striking  point  to  be  noticed  in  connection 
with  the  executive  heads  of  modern  governments  is 
that,  while  members  of  the  legislature  are  many,  the 
chief  officers  of  the  executive  are  few.  This,  as  has 
been  seen,  arises  from  the  fact  that  the  prime  need  in 
the  executive  or  acting  branch  of  a  government  is 
promptness  of  decision  and  singleness  of  purpose.  That 
this  is  difficult  to  obtain  among  a  number  of  persons 
acting  with  equal  authority  goes  without  saying.  "  One 
bad  general,"  the  Emperor  Napoleon  once  said,  "is 
better  than  two  good  ones." 

It  is  further  to  be  noted  that  to  a  very  great  ex- 
tent executive  authority  —  either  over  the  whole  con- 
duct of  government  or  over  its  subdivisions  —  tends 
to  centre  in  a  single  person.  Thus  in  the  United 
States  the  supreme  administration  lies  in  the  Presi- 
dent, whose  chief  subordinates  are  his  own  creations, 
and  can  be  dismissed  by  him.  Jn  Great  Britain  the 
virtual  control  of  affairs  is  in  the  hands  of  a  cabinet 
of  fifteen  to  twenty  persons,  one  of  whom  is,  to  a 
large  extent,  dominant  over  the  others.  It  is  not  ne- 
cessary that  any  single  person  should  always  impose 
his  own  ideas  and  his  own  will  upon  the  conduct  of 
public  administration.  But  it  is  essential  that  there 
should  be  some  one  person  who  can  in  the  last  resort 
exercise  a  decisive  and  final  authority.  It  is  one  of  the 
admirable  points  in  the  federal  Constitution  of  the 
United  States  that,  by  virtue  of  his  position  of  com- 
mander-in-chief of  the  army  and  navy,  the  President 
may  become  in  time  of  war  almost  a  dictator.  His 
power  expands  with  the  need  of  strengthening  the 
executive,  and  he  is  able  to  cut  the  Gordian  knot  of 


THE  EXECUTIVE  183 

legislative  perplexities  by  the  incisive  application  of  a 
single  will.^ 

It  appears,  then,  that  there  is  a  strong  presumption 
against  what  is  called  a  "  plural  executive,"  or  group 
of  persons  exercising  the  supreme  executive  authority, 
no  one  of  whom  is  superior  in  power  to  the  others. 
Such  a  body  is  able  to  act  only  by  joint  decision.  At 
first  sight  there  appears  a  decided  gain  in  this  system 
in  the  direction  of  maturity  of  judgment  and  mutual 
control  of  the  members  against  any  possible  tyranny 
on  the  part  of  any  of  them.  But  the  necessary  loss  in 
promptness  of  resolution  and  the  danger  of  actual  con- 
flict of  opinion  in  a  moment  of  crisis,  more  than  offsets 
this  gain.  As  a  matter  of  fact  a  plural  executive  is 
scarcely  able  to  act  at  all  except  by  subdividing  the 
work  to  be  done  and  committing  certain  special  func- 
tions to  the  care  of  each  of  its  members.  This  was,  for 
example,  the  plan  pursued  by  the  Committee  of  Public 
Safety,  the  joint  executive  of  eleven  members  which 
governed  France  during  the  reign  of  terror,  1793-94.^ 
History  offers  many  examples  of  plural  executives,  such 
as  the  dual  kings  at  Sparta  and  the  consuls  at  Rome. 
But  experience  has  been  decidedly  unfavorable  to  such 
a  plan  of  government.  To  this  general  verdict  a  signal 
exception  is  found  in  the  case  of  modern  Switzerland. 
Here  the  supreme  executive  power  is  vested  in  a  board 
of  seven  persons,  the  Bundesrath,  or  federal  council, 
elected  for  a  term  of  three  years,  by  the  two  houses  of 

1  Consult  in  this  respect  J.  W.  Burgess,  Political  Science  and  Con- 
stitutional Law,  vol.  ii,  division  iii,  chap.  iv. 

^  For  the  division  of  executive  business  among  the  members  of  the 
Committee  of  Public  Safety,  see  Morse  Stephens,  The  French  Revolu- 
tion, vol.  ii. 


184      THE  STRUCTURE  OF  THE  GOVERNMENT 

the  legislature  in  joint  session.  Although  one  of  the 
council  is  nominated  each  year  to  the  titular  dignity  of 
president  of  the  Swiss  Confederation,  he  is  in  no  sense 
above  the  others  in  authority.  The  members  act  sever- 
ally as  the  heads  of  the  seven  governmental  depart- 
ments, though  this  is  for  convenience  only,  and  not 
prescribed  by  the  constitution.  In  their  corporate 
capacity  they  manage  the  general  conduct  of  the  ad- 
ministration. In  practice  the  system  works  admirably. 
The  members  of  the  council  are  constantly  reelected, 
and  enjoy  what  is  practically  a  permanent  tenure.  But 
this  rather  anomalous  situation  is  partly  to  be  explained 
by  the  fact  that  the  legislature  itself  decides  upon  the 
policy  to  be  pursued  in  all  matters  of  moment. 

2.  Methods  of  Appointment ;  Hereditary  Ex- 
ecutives. Returning,  then,  to  the  consideration  of 
modern  executives  in  general,  and  having  noted  the 
prevailing  principle  of  single  control,  we  may  next  in- 
dicate the  great  differences  that  exist  in  the  method  of 
selecting  the  executive  heads  of  governments,  in  their 
tenure  of  office,  and  in  the  relations  of  the  executive  to 
the  legislative  body.  Two  separate  lines  of  classifica- 
tion are  here  presented ;  first  the  distinction  between 
hereditary  and  appointed  executives,  and  secondly  the 
distinction  between  those  that  are  real  and  those  that 
are  nominal.  A  hereditary  executive  —  a  king,  empe- 
ror, sovereign  prince,  etc.  —  enjoys  a  tenure  which  is 
not  only  lifelong,  but  which  passes  to  his  heirs.  Such 
an  institution  has  of  course  no  place  among  the  polit- 
ical ideas  current  in  the  independent  states  of  the 
American  continent.  Looked  at  in  a  purely  rational 
light,  it  is  difficult  to  find  much  to  be  said  in  its  favor. 


THE   EXECUTIVE  185 

A  hereditary  ruler  seems  on  the  face  of  things  as 
absurd  as  the  hereditary  mathematician  or  hereditary 
poet-laureate  referred  to  in  the  preceding  chapter.  But 
hereditary  monarchy,  as  it  exists  in  Europe,  is  not  to 
be  disposed  of  in  so  simple  a  manner.  In  nearly  all 
countries  where  it  exists,  it  is  a* historical  product,  and 
has  grown  up  as  a  part  of  the  political  evolution  of  the 
state.  In  many  cases,  too,  it  is  regarded  by  the  people 
of  the  country,  as  most  notably  in  Great  Britain,  not 
only  with  tolerance,  but  with  the  most  sincere  ap- 
proval. The  desire  for  a  republican  form  of  govern- 
ment is  about  as  little  known  in  England  as  the  desire 
for  a  monarchical  system  in  the  United  States.  But 
the  real  secret  of  the  persistent  survival  of  hereditary 
monarchy  in  so  many  of  the  civilized  communities  of  the 
world  lies  in  the  fact  that,  in  the  cases  where  it  meets 
with  the  greatest  approval,  the  hereditary  sovereign 
is  a  nominal  and  not  a  real  executive.^  In  the  United 
Kingdom,  Italy,  Hungary,  Belgium,  etc.,  the  actual 
conduct  of  government  is  not  in  the  hands  of  the  king. 
The  king  is,  to  a  great  extent,  though  o*f  course  not 
literally,  only  the  nominal  head  of  the  state  ;  public 
business  is  transacted  in  his  name,  and  professedly  by 
his  authority,  but  in  reality  the  control  of  affairs  is 
in  the  hands  of  the  prime  minister  and  cabinet,  who 
represent  the  voice  of  the  people.  In  this  form  the 
system  can  be  supported  by  many  arguments  of  great 
weight.  It  helps  to  lend  to  the  government  of  the 
country  those  features  of    stability,  permanence,  and 

^  A  very  interesting'  discussion  of  the  somewhat  accidental  develop- 
ment of  the  peculiar  position  held  by  a  "  constitutional ' '  sovereign  is 
found  in  Sidney  Low's  Governance  of  England. 


18G      THE  STRUCTURE  OF  THE  GOVERNMENT 

continuity  which  are  among  the  most  essential  factors 
in  political  institutions.  To  international  dealings  it 
contributes,  whether  rightly  or  wrongly,  a  certain  pres- 
tige that  is  not  without  its  diplomatic  value.  It  is  cer- 
tainly, also,  to  be  admitted  that  the  traditions  which 
surround  a  monarchy -of  long  continuance  help  to  in- 
spire the  actual  chiefs  of  the  government  with  a  sense 
of  responsibility  and  dignity  most  salutary  in  its  effect. 

In  spite  of  all  this  it  may  perhaps  be  doubted 
whether  the  wonders  of  constitutional  monarchy  have 
not  been  somewhat  overestimated  by  its  English  pane- 
gyrists. When  all  is  said  and  done  there  always  re- 
mains a  contingent  possibility  that  a  future  monarch 
may  break  rudely  away  from  the  self-effacement  im- 
posed upon  him  by  the  system.  The  admirable  man- 
ner in  which  Queen  Victoria  and  Edward  VII  have 
filled  the  position  of  constitutional  sovereign  has  made 
people  forget  that  this  self-effacement  is  customary, 
and  not  part  of  the  law  of  the  land.  The  relations 
thus  established,  especially  in  the  connection  of  the 
sovereign  with  foreign  affairs,  are  extemely  delicate, 
and  demand  for  their  proper  maintenance  a  high  de- 
gree of  tact  on  the  part  of  the  monarch.  The  success- 
ful operation  of  system  is  by  no  means  so  independent 
of  the  competence  or  incompetence,  the  integrity  or 
perversity  of  the  reigning  prince  as  the  English  writers 
are  inclined  to  imply.  Whether  or  not  such  contingent 
disadvantages  overbalance  the  features  of  stability 
and  continuity  that  result  from  the  institution  of  mon- 
archy is  of  course  a  subject  admitting  a  great  diversity 
of  opinion. 

The  hereditary  monarchs  of  the  present  day  are  not 


THE  EXECUTIVE  187 

all  of  the  constitutional  type.  The  king  of  Prussia 
(who  by  virtue  of  his  kingship  is  also  German  em- 
peror) is  an  example  to  the  contrary.  Here  the  consti- 
tutional maxim  that  the  king  "reigns  but  does  not 
govern  "  no  longer  holds  true.  The  king  of  Prussia 
not  only  reigns  but  governs  also/  and  his  executive 
function  is  both  titular  and  actual.  The  kingship 
passes  to  his  descendants.  To  the  American  mind  it 
seems  very  difficult  to  defend  such  an  institution.  The 
defense  on  grounds  of  dynastic  rights  to  the  kingship 
as  a  sort  of  property,  or  on  quasi -theological  grounds  as 
a  thing  specially  instituted  by  the  deity,  hardly  needs 
refutation.  Any  defense  of  such  a  monarchy  on  the 
grounds  of  its  efficiency  carries  with  it  the  assumption 
that  the  future  sovereign  in  line  of  descent  will  of  ne- 
cessity prove  efficient.  Nevertheless,  German  writers 
on  public  law  are  quite  prepared  to  defend  the  exist- 
ence of  monarchy  even  where -not  of  the  limited  or 
constitutional  type. 

3.  Elective  Executives.  In  contrast  to  hereditary 
executives  may  be  placed  the  wide  class  of  those  that 
may  best  be  termed  elective.  The  terminology  is  here 
hardly  satisfactory,  for  in  addition  to  officials  actually 
elected,  such  as  the  President  of  the  United  States, 
there  exists  a  class  of  head  executive  officers  who  are 
certainly  not  hereditary,  and  who  are  rather  to  be 
thought  of  as  selected  than  elected.  The  word  "  nom- 
inated," or  appointed,  would  indicate  more  precisely  the 
method  of  their  accession  to  office.    Inasmuch,  however, 

^  "  With  us  the  king  himself  governs  ;  the  ministers  of  course  form- 
ulate (redigiren)  what  the  king  has  commanded,  but  they  do  not 
govern."    Speech  of  Prince  Bismarck  in  the  German  Reichstag,  1882. 


188      THE   STRUCTURE  OF  THE  GOVERNMENT 

as  such  chief  executives  are  found  not  in  independent 
states,  but  in  the  subordinate  governments  of  an  im- 
perial system,  it  would  seem  improper  to  make  on  their 
account  a  third  general  category  of  the  executive  in 
general.  Such  officials  as  the  Governor  General  of 
Canada,  the  Viceroy  of  India,  and  the  governors  of 
British  colonies,  all  of  whom  are  nominated  by  the 
crown,  are  of  this  description.  The  lieutenant-governors 
of  the  Canadian  provinces,  who  are  appointed  by  the 
Governor  General,  belong  to  the  same  class.  These  ex- 
ecutive officers  will  also  be  divided  into  those  that  are 
actual  and  those  that  are  only  nominal.  The  Viceroy 
of  India  is  of  the  first  sort ;  the  Canadian  Governor 
General  is  of  the  second,  and  the  lieutenant-governors 
represent  only  the  thinnest  kind  of  nominal  power. 
Such  executives  are  of  course  merely  the  outcome  of 
the  peculiar  circumstances  of  the  British  empire,  in 
which  it  is  necessary  to  reproduce  by  proxy  in  the 
colonies  and  dependencies  the  nominal  character  of  the 
power  of  the  British  sovereign. 

Most  independent  states  that  are  not  under  a  hered- 
itary monarch  have  at  their  head  an  elected  executive 
chief.  Between  these  two  an  intermediate  form  might 
be  distinguished,  a  king  elected  for  life  out  of  a  "  reign- 
ing family."  This  form  is  often  found  in  history,  as  for 
example  in  England  at  the  time  of  the  Norman  conquest. 
It  belongs  to  an  age  when  the  king  was  in  the  full  sense 
o£  the  term  the  "  war  lord,"  and  when  military  prowess 
was  so  important  in  a  ruler  that  the  reign  of  a  minor 
or  a  weakling  was  re])ugnant  to  the  general  sentiment 
of  the  nation.  But  among  the  elected  executives  of 
modern  civilized  states  such  a  form  no  longer  appears. 


THE   EXECUTIVE  189 

The  actual  elected  executives  present  a  considerable 
diversity.  They  are  almost  all  alike  in  that  the  supreme 
power,  nominal  or  virtual,  is  vested  in  a  single  person, 
though  even  here  the  Swiss  executive  has  been  seen  to 
be  an  exception.  But  apart  fi-om  this  many  divergen- 
cies appear.  In  the  first  place  the  manner  of  election 
is  various.  The  President  of  the  United  States  is  elected 
by  an  indirect  election,  which  through  the  purely  me- 
chanical nature  of  the  electoral  college  has  become 
practically  direct.  In  France  the  president  is  elected 
by  the  two  houses  of  the  legislature  sitting  together  as 
a  "  national  assembly."  The  governors  of  the  separate 
commonwealths  of  the  United  States  are  elected  di- 
rectly by  the  people.  The  system  of  election  varies  among 
the  republics  of  Central  America  and  Southern  Amer- 
ica. Some  of  them,  as  Mexico,  the  Argentine  Republic, 
and  Chili,  choose  their  presidents  by  indirect  election. 
In  others,  as  for  example,  in  Peru,  in  Brazil,  and  in 
Bolivia,  the  election  is  made  directly  by  the  people. 
Theoretically  considered,  the  process  of  indirect  election 
appears  attractive.  While  not  inconsistent  with  the 
principle  of  popular  sovereignty,  it  appears  to  put  the 
actual  choice  of  the  executive  head  into  the  hands  of 
a  specially  competent  body.  Practical  experience,  how- 
ever, is  against  the  plan  ;  it  is  found  either  to  convert 
itself  into  what  is  merely  a  needlessly  cumbrous  form 
of  direct  election,  or  else  to  lend  itself  to  the  intrigue 
and  sinister  influence  of  an  inside  ring. 

Another  difficult  problem  presents  itself  in  the  mat- 
ter of  the  duration  of  the  executive  term  of  office  and 
in  the  question  of  reeligibility.  In  all  democratic  re- 
publican countries  there  is  an  instinctive  repugnance 


190      THE   STRUCTURE   OF  THE   GOVERNMENT 

to  Ions:  continuance  in  office,  and  a  fear  that  an  office 
thus  held  may  transform  itself  into  what  is  practically 
a  monarchical  tenure.  In  accordance  with  this  idea  the 
presidents  of  the  different  American  republics  hold 
office  for  terms  varying  from  four  to  six  years.  For  the 
same  reason  the  outgoing  president  is  in  most  of  these 
cases  not  eligible  for  the  succeeding  term.  Mexico,  in 
which  the  president  is  not  only  reeligible  after  his  four 
years  in  office,  but  has  in  fact  been  continuously  in 
office  from  1884  until  1906,  is  here  an  exception.  In 
the  United  States  the  law  of  the  Constitution  does  not 
prohibit  reelection.  But  public  opinion  has  confirmed 
the  precedent  first  set  by  Washington,  and  forbids  the 
election  of  the  President  for  a  third  term.  That  such  a 
rule  was  a  salutary  precaution  at  the  inception  of  the 
republic  was  doubtless  true.  At  the  close  of  the  eight- 
eenth century,  a  rejjublic  covering  any  considerable 
territorial  extent  was  regarded  as  an  experimental  de- 
parture in  political  institutions.^  It  was  consequently 
well  worth  while  to  make  special  sacrifices  to  avert  the 
possibility  of  the  subversion  of  republican  institutions 
by  the  too  great  dominance  of  a  single  person.  The 
example  of  Napoleon  Bonaparte,  who  found  means  to 
convert  his  consulship  for  ten  years  into  a  consulship 
for  life,  and  then  into  an  imperial  rule,  illustrates  the 
danger  which  Washington  and  his  immediate  successors 
were  anxious  to  avoid.  But  it  may  well  be  doubted 
whether  at  the  present  time,  and  in  a  country  in  which 

^  Montesquieu  (Esprit  des  Lois,  1748,  bk.  viii,  chap,  xvi)  aays : 
"  D  est  de  la  nature  d'une  r^publique  qu'elle  n'ait  qu'un  petit  territoire  : 
sanscela  elle  ne  peutgu^re  subsister."  The  reflections  which  follow  on 
the  political  dangers  of  a  large  republic  are  especially  interesting.  See 
also  Rousseau's  Social  Contract. 


THE   EXECUTIVE  191 

republican  institutions  have  been  consolidated  by  a 
hundred  years  of  political  growth,  such  a  customary 
regulation  has  not  become  an  anachronism.  It  deprives 
the  country  of  the  services  of  its  greatest  political  leader 
at  the  very  time  when  his  matured  experience  has  es- 
pecially fitted  him  for  his  post.  Certainly  in  England 
such  a  compulsory  retirement  of  men  like  Gladstone, 
Beaconsfield,  and  Salisbury  at  the  very  zenith  of  their 
political  career  would  be  considered  a  national  loss.  In 
France  the  president  is  elected  for  seven  years  and  is 
reeligible ;  but  it  must  be  remembered  that  in  this  in- 
stance the  president  is  not  the  governing  executive  but 
only  the  nominal  head  of  the  state.  The  French  repub- 
lic is  a  parliamentary  republic,  and  the  executive  power 
is  in  reality  held  by  the  prime  minister  and  his  cab- 
inet. 

4.  Presidential  and  Parliamentary  Govern- 
ment. From  what  has  been  said  it  will  be  seen  that 
the  divisions  of  executive  into  hereditary  and  elective, 
nominal  and  actual,  lie  crosswise  of  each  other.  A 
hereditary  sovereign  may  be  nominal,  as  in  the  case  of 
the  British  king,  or  he  may  be  an  actual  ruler,  as  is  the 
king  of  Prussia.  Similarly  an  elected  executive  such  as 
the  President  of  the  United  States  is  actual,  while  the 
president  of  the  French  Republic  is  only  nominal. 
The  distinction  between  nominal  and  virtual  executives 
leads  to  the  consideration  of  the  most  fundamental  of 
all  questions  in  regard  to  the  executive,  namely,  its 
connection  with  the  legislature.  This  has  already  been 
referred  to  in  discussing  the  separation  of  powers,  but 
some  further  treatment  is  here  necessary.  The  govern- 
ments of  modern  states  are  divided  between  two  rival 


192      THE  STRUCTURE  OF  THE  GOVERNMENT 

systems  of  operation.  Of  these  the  one  is  commonly 
termed  "parliamentary,"  "responsible,"  or  "cabinet" 
government ;  the  other,  for  which  no  satisfactory 
designation  can  be  found,  has  been  variously  styled 
"non-responsible,"  "  presidential,"  or  "congressional" 
government.  In  a  parliamentary  government  the  tenure 
of  office  of  the  virtual  executive  is  dependent  on  the 
will  of  the  legislature  ;  in  a  presidential  government 
the  tenure  of  office  of  the  executive  is  independent 
of  the  will  of  the  legislature.  Parliamentary  govern- 
ment is  always  found  in  connection  with  the  presence 
of  a  nominal  executive.  But  it  is  to  be  remembered 
that  this  nominal  executive  need  not  be  a  hereditary 
titular  sovereign.  In  France  the  government  is  parlia- 
mentary, but  the  nominal  head  of  the  state  is  an  elected 
officer.  Similarly  the  presidential  system  is  always 
found  in  connection  with  a  real  or  virtual  executive ; 
but  this  real  executive  need  not  be  an  elected  presi- 
dent, as  the  instance  of  Prussia  clearly  shows.  It  thus 
seems  that  the  word  presidential  is  somewhat  a  mis- 
nomer, since  a  presidential  government  may  not  have 
a  president,  and  a  country  which  has  a  president  need 
not  have  a  presidential  government.  Unfortunately, 
however,  no  more  adequate  terminology  can  be  found ; 
"  non-responsible  "  carries  with  it  an  entirely  false  con- 
notation, and  "  congressional "  has  already  another 
signification  in  allusion  to  the  Congress  of  the  United 
States. 

The  principle  of  parliamentary  government  is  best 
understood  by  studying  the  evolution  and  operation  of 
the  British  cabinet.  The  kinij  of  Encfland  was  never 
without  a  group  of  councilors  and  chief  officers  to  aid 


THE  EXECUTIVE  193 

him  in  the  conduct  of  the  government.  These  advisers, 
known  in  Norman  times  as  the  King's  Ordinary  or 
Permanent  Council,  and  from  the  time  of  Henry  YI 
as  the  Privy  Council,  were  men  of  the  king's  own 
choice.  They  were  the  king's  "ministers"  in  the  lit- 
eral sense  of  the  term.  Nor  were  they,  for  centuries 
after  the  consolidation  of  consultative  assemblies  into  a 
national  Parliament  (1295),  controlled  by  the  legisla- 
ture, except  by  the  heroic  remedy  of  impeachment. 
They  were  rather  the  natural  antagonists  of  the  Parlia- 
ment than  its  chosen  representatives.  This  is  particu- 
larly seen  during  the  tyranny  of  the  Stuarts,  where 
Sir  Thomas  Wentworth's  desertion  of  the  popular 
cause  elevated  him  to  the  position  of  a  minister  of  the 
crown.  Moreover,  the  group  of  ministers  who  formed 
the  king's  council  constantly  showed  a  tendency  to 
unduly  increase  in  numbers.  This  led  to  the  concen- 
tration of  power  in  the  hands  of  an  inner  circle,  to 
whom  the  name  "  cabinet "  came  to  be  applied.  The 
overthrow  of  the  Stuarts  and  the  recognition  of  the 
principle  of  the  supremacy  of  Parliament  by  the  Bill 
of  Rights  (and  later  by  the  Act  of  Settlement)  ren- 
dered the  previous  relation  of  ministers  and  Parliament 
no  longer  possible.  As  a  means  of  conducting  the 
executive  government  with  the  support  of  the  members 
of  Parliament,  William  III,  acting  on  the  advice  of  the 
Earl  of  Sunderland,  deliberately  chose  his  ministers 
from  the  ranks  of  the  party  dominant  in  the  Commons. 
This,  if  ever  one  may  speak  with  propriety  of  a  politi- 
cal invention,  was  the  invention  of  the  cabinet  sys- 
tem of  government.  Yet  the  system  thus  instituted 
remained  for  nearly  a  century  in  a  rudimentary  and 


194      THE   STRUCTURE  OF  THE  GOVERNMENT 

imperfect  state.  The  ministers  did  not  at  first  feel 
called  upon  to  resign  on  the  loss  of  parliamentary 
support.  They  prefered  to  wait,  as  did  William's  min- 
istry in  1698,  for  the  adverse  majority  to  "  blow  over." 
Nor  did  the  ministry  throughout  the  first  half  of  the 
eighteenth  century  resign  or  enter  office  as  a  body. 
Lord  Rockingham's  cabinet  of  1765  may  be  looked 
upon  as  the  first  set  of  ministers  coming  into  office  as 
a  body.  Even  till  the  end  of  the  century  the  ministers, 
though  they  might  belong  to  the  same  party,  were  not 
of  necessity  united  in  j)olicy  or  harmonious  in  their 
political  relations  with  one  another.  Pitt's  insistence 
on  the  resignation  of  his  refractory  chancellor  Lord 
Thurlow  (1792)  marks  the  recognition  of  this  stage 
of  cabinet  evolution ;  the  refusal  of  the  ministers  of 
George  IV  to  give  him  individual  advice  in  reference 
to  a  matter  of  foreign  policy  indicates  its  final  adoption.^ 
Taking  the  cabinet  as  it  now  exists,  it  may  be  said 
to  operate  on  the  following  plan  :  It  consists  of  a  group 
of  from  fifteen  to  twenty  men,  who,  though  not  legally 
a  corporate  unit,  have  in  practice  a  united  policy  and 
a  united  responsibility.  Each  of  them  is  a  member  of 
the  legislature,  either  of"  the  Lords  or  of  the  Commons. 
They  are  nominated  by  the  crown,  acting  on  the  ad- 
vice of  one  of  their  number  whom  the  kins:  has 
first  selected  to  be  the  prime  minister.  They  belong  to 
the  political  party  or  coalition  of  parties  which  com- 
mands the  support  of  the  House  of  Commons.  Should 
they  lose  that  support  they  resign  collectively.    In  the 

^  The  development  of  cabinet  government  in  Great  Britain  is  traced 
in  Ilearn,  Government  of  England.  See  also  C.  Ransome,  Rise  of  Con- 
stitutional Government. 


THE  EXECUTIVE  195 

United  Kingdom  the  whole  of  this  arrangement  is  cus- 
tomary, and  not  legal.  But  such  need  not  be  the  case. 
In  France,  for  example,  it  is  part  of  the  law  of  the 
constitution  ^  that  "  the  ministers  are  collectively  re- 
sponsible to  the  chambers  for  the  general  policy  of  the 
government."  This  is  held  to  mean  that  they  must 
resign  if  no  longer  supported  by  the  Chamber  of 
Deputies.^ 

To  this  relation  thus  existing  between  the  French  or 
British  executive  and  legislature,  the  presidential  sys- 
tem as  seen  in  the  United  States  or  Germany  stands 
in  complete  contrast.  In  the  United  States,  for  in- 
stance, the  President,  who  is  the  actual  executive,  is 
elected  independently  of  the  legislature,  for  a  term  of 
years  prescribed  by  the  Constitution.  Except  by  the 
process  of  impeachment,  the  legislature  cannot  shorten 
his  term  in  office.  Nor  can  the  legislature  dictate  to 
the  President  the  political  or  administrative  policy  to 
be  followed,  nor  control  it  in  any  direct  legal  way, 
excepting  in  so  far  as  the  Senate  has  a  veto  upon  the 
making  of  appointments  and  treaties.  Moreover,  the 
members  of  the  President's  "  cabinet,"  as  the  group  of 
executive  officers  who  are  at  the  head  of  the  different 
departments  is  commonly  called,  are  appointed  by  the 
President^  himself .  There  is  no  obligation  upon  him  to 
consult  the  wishes  of  the  legislature  in  selecting  them. 
Nor  can  the  legislature,  except  in  the  last  resort,  by 
impeachment,  force  the  dismissal  of  members  of  the 
cabinet.    The  President,  on  the  other  hand,  can  appoint 

1  Loi  Constitutionelle,  Feb.  25,  1875,  art.  6. 

2  The  extent  of  the  power  of  the  French  Senate  to  force  a  ministry 
out  of  office  is  a  doubtful  constitutional  point.  Dupriez,  Les  Ministres 
dans  les  Principaux  Pays  cf  Europe,  vol.  ii. 


196      THE  STRUCTURE  OF  THE  GOVERNMENT 

and  dismiss  them  at  will.  Similarly  in  Germany,  the 
emperor  has  an  actual  executive  power.  His  official 
acts,  indeed,  require  the  countersignature  of  his  chan- 
cellor, but  the  latter  is  an  officer  of  his  own  creation, 
holding  office  during  the  emperor's  pleasure.^  There 
is  no  power  on  the  part  of  the  legislature,  by  an  ad- 
verse vote  or  otherwise,  to  force  the  resignation  of  the 
chancellor.  The  same  relation  is  found  in  the  govern- 
ment of  the  kingdom  of  Prussia. 

The  above  illustrations  show  what  different  purposes 
parliamentary  and  presidential  government  may  be 
made  to  serve.  In  Prussia  presidential  government 
permits  of  the  existence  of  a  national  legislature,  the 
lower  house  of  which  is  democratic,  without  putting  an 
end  to  the  dominant  power  of  the  crown.  In  Great 
Britain  parliamentary  government  has  afforded  a  means 
of  compromise  whereby  the  monarch  retains  his  nomi- 
nal position  as  the  controlling  authority,  while  in 
reality  the  centre  of  power  has  been  shifted  to  the 
elected  representatives  of  the  people.  In  France  and 
the  United  States,  on  the  other  hand,  the  parliamentary 
and  the  presidential  systems  have  been  each  deliberately 
adopted  as  the  best  means  of  putting  into  practice  the 
doctrine  of  popular  sovereignty. 

It  is  impossible  here  to  institute  a  detailed  criticism 
of  the  merits  of  the  two  systems.  In  England  the  par- 
liamentary system  plays  a  specially  useful  part  in  en- 
abling the  government  to  be  converted  into  a  democracy 
without  breaking  with  the  historical  position  of   the 

^  The  immediate  assistants  of  the  imperial  chancellor  at  the  head 
of  the  different  departmonts  are  not  his  colleagues,  but  his  subordi- 
nates in  the  strict  sense  of  the  term. 


THE  EXECUTIVE  197 

crown.  The  same  purpose  has  been  effected  by  imitation 
in  Italy,  Spain,  and  other  countries.  The  king  of  Sar- 
dinia was  accepted  as  ruler  by  the  other  states  which 
were  joined  into  a  united  Italy  (1859-70)  by  virtue  of 
the  fact  that  the  governing  power  would  lie  with  the 
representatives  of  the  nation  at  large.  If  the  gradual 
abolition  of  monarchy  is  to  be  part  of  the  political  evo- 
lution of  the  future,  it  will  prove  to  have  been  effected 
by  means  of  the  parliamentary  system.  In  spite  of  all 
that  has  been  said  in  its  favor,  the  system  is  not  without 
its  drawbacks.  It  works  evenly  and  well  where  two 
great  political  parties  exist,  which  alternately  hold  the 
power  of  government  and  of  which  each  is  gradually 
forced  to  give  place  to  the  other.  But  where  not  one 
but  many  parties  exist  (as  in  France  and  Italy  at  the 
present  day),  loose  in  cohesion,  and  constantly  forming 
and  reforming  into  new  coalitions,  it  introduces  a  dan- 
gerous element  of  instability  into  national  government, 
and  leads  to  the  sacrifice  of  principle  for  the  sake  of 
power.  On  the  other  hand  the  presidential  system  has 
very  decided  disadvantages.  The  office  of  chief  execu- 
tive becomes  of  so  great  importance  that  the  recurrent 
election  of  the  president  occasions  periods  of  great  ex- 
citement and  upheaval,  always  unfavorable  to  industrial 
activity  and  in  turbulent  countries  fraught  with  possi- 
bilities of  revolution.  Moreover,  apart  from  the  artificial 
junction  effected  by  party  ties,  the  system  may  place  the 
executive  and  the  legislature  in  dangerous  antagonism. 
5.  Subordinate  Officials  and  the  Executive;  the 
Civil  Service.  It  has  been  said  at  the  opening  of 
the  chapter  that  the  term  executive  signifies  sometimes 
the  single  head  of  the  state,  sometimes  the  head  of 


198      THE  STRUCTURE  OF  THE  GOVERNMENT 

the  state  together  with  his  chief  associates  or  subordi- 
nates, aucl  at  times  the  entire  force  of  executive  officers, 
high  and  low.  The  subdivisions  of  the  executive  gov- 
ernment and  the  relations  of  its  parts  among  them- 
selves must  consequently  be  separately  considered.  A 
distinction  may  here  be  at  once  made  between  executive 
bodies  that  are  of  the  nature  of  a  hierarchy,  radiating 
from  a  common  source,  and  those  that  may  be  spoken 
of  as  coordinate.  In  a  purely  hierarchical  executive 
the  whole  staff  of  executive  officers  are  appointed  either 
directly  or  indirectly  by  the  chief  executive.  Of  this 
type  is  the  government  of  the  United  Kingdom,  in 
which  appointments  flow  from  the  crown,  and  the 
federal  government  of  the  United  States,  whose  officers 
are  appointed  either  directly  by  the  President  or  indi- 
rectly by  a  person  or  persons  nominated  by  the  Presi- 
dent. The  same  is  true  in  general  of  the  executive 
officers  of  most  independent  states.  On  the  other  hand 
the  commonwealths  of  the  American  Union  have  co- 
ordinate executives.  Here  the  appointing  power  of  the 
chief  officer  of  the  government  (the  state  governor)  is 
very  limited ;  the  majority  of  executive  officers  are 
elected  to  their  positions  by  the  people.  This  is  true 
even  of  the  chief  officials  associated  with  the  gov- 
ernor, —  the  lieutenant-governor,  the  secretary  of  state, 
the  treasurer,  the  attorney-general,  superintendent  of 
education,  auditor,  comptroller,  etc.  But  a  body  of  this 
sort  is  still  properly  to  be  regarded  as  a  unit  and  not 
as  a  plural  executive,  since  the  whole  staff'  of  officials 
is  under  the  supervision  and  to  some  extent  under  the 
control  (sometimes  by  power  of  dismissal)  of  the  execu- 
tive head  of  the  government.    Moreover,  the  depart- 


THE  EXECUTIVE  199 

mental  heads  each  exercise  a  single  and  not  a  collective 
authority.  The  contrast  between  a  coordinate  executive 
and  a  hierarchical  is  extreme.  The  former  works  well 
enough  in  the  subordinate  governments  of  a  federal 
system ;  in  these,  especially  where  there  is  an  elaborate 
written  constitution,  executive  duties  are  precise  and 
there  is  but  little  latitude  for  general  policy.  But  in  a 
national  government  the  case  is  different ;  here  there 
is  need  for  a  central  power  of  great  authority,  exercis- 
ing a  large  amount  of  administrative  discretion  and 
able  to  rely  on  the  vigorous  cooperation  of  harmonious 
subordinates.  The  unity  of  purpose  required  to  meet  a 
sudden  and  serious  national  emergency  could  hardly 
be  found  in  a  cabinet  of  executive  officers  elected  singly 
and  separately  by  the  people. 

In  all  governments,  even  though  there  may  exist  one 
person  of  supreme  executive  power,  it  is  necessary  to 
divide  up  the  practical  conduct  of  the  administration 
into  a  number  of  departments.  The  division  adopted 
in  four  of  the  leading  governments  of  the  world  is 
shown  in  illustrative  form  in  the  table  at  the  end  of 
the  present  chapter.  It  will  be  seen  that  certain  great 
departments  of  business  —  the  management  of  foreign 
affairs,  of  the  army,  of  the  navy,  and  of  the  finances  — 
are  common  to  all.  The  American  Secretary  of  State 
corresponds  roughly  to  what  is  elsewhere  called  the 
Secretary  or  Minister  of  Foreign  Affairs.  The  names 
of  most  of  the  remaining  cabinet  officers  indicate  ap- 
proximately the  functions  to  be  performed.  In  addi- 
tion to  the  usual  officers,  each  country  finds  it  necessary 
to  establish  certain  special  departments  to  correspond 
to  its  peculiar  needs.  i^The  office  of  the  British  Colonial 


200      THE  STRUCTURE  OF  THE  GOVERNMENT 

Secretary  and  that  of  the  Secretary  for  India  are  ex- 
amples of  this.  In  "  parliamentary  "  governments,  too, 
it  is  found  useful  to  include  in  the  cabinet  group 
several  officers  who  have  either  no  departmental  duties 
or  duties  of  only  a  nominal  character,  and  are  thus 
free  to  aid  in  the  general  political  control.  In  Great 
Britain  this  is  effected  by  means  of  sinecure  offices 
almost  free  from  actual  administrative  duties,  such 
as  the  positions  of  the  First  Lord  of  the  Treasury 
(generally  held  by  the  Premier),  the  Lord  Privy  Seal, 
the  Chancellor  of  the  Duchy  of  Lancaster,  etc.  In 
Italy,  Canada,  and  other  places,  the  practice  is  adopted 
of  admitting  to  the  cabinet  ministers  "  without  port- 
folio." 

Below  these  heads  of  departments  comes  the  general 
body  of  executive  officers  that  form  what  is  called  the 
civil  service.  The  relation  of  the  members  of  the  civil 
service  to  the  heads  of  the  government,  their  appoint- 
ment, dismissal,  and  tenure  of  office,  is  one  of  the  dif- 
ficult problems  of  present  politics.  It  will  be  well, 
therefore,  briefly  to  indicate  the  existing  status  and 
regulation  of  the  civil  service  in  Great  Britain  and  the 
United  States.  The  case  of  Great  Britain  may  best  be 
discussed  first. 

The  British  civil  service  comprises  a  staff  of  about 
80,000  officials.  This  includes  the  officers  of  the  royal 
household,  a  large  number  of  officials  connected  with 
the  foreign,  home,  and  colonial  offices,  the  admiralty, 
the  treasury,  etc.,  officials  serving  under  the  local  gov- 
ernment board,  the  patent  office,  the  emigration  office, 
the  diplomatic  and  consular  corps,  collectors  of  customs 
and  excise,  postmasters,  etc.    The  fundamental  prin- 


THE  EXECUTIVE  201 

ciple  in  the  conduct  of  the  service  thus  constituted  is 
permanence  in  office,  and  the  dissociation  of  tenure  of 
office  from  the  changes  of  government  caused  by  the 
cabinet  system.  The  only  officers  of  a  political  com- 
plexion are  the  heads  of  the  departments,  together  with 
certain  chief  secretaries  and  assistants  who  are  known 
collectively  as  the  ministry,  and  who  number  in  all 
about  fifty  persons.  Thus,  for  example,  the  Home 
Secretary  (principal  secretary  of  state  for  home  affairs) 
has  as  his  subordinate  a  "  parliamentary  nnder-secre- 
tary,"  who,  like  himself,  is  a  member  of  the  ministry, 
and  resigns  office  on  the  defeat  of  the  government.  He 
has  also  a  "  permanent  under-secretary,"  who  is  not  a 
political  officer,  and  who  is  at  the  head  of  the  standing 
staff  of  clerks,  superintendents,  inspectors,  and  other 
officials  of  the  department.  A  similar  plan,  though  the 
official  titles  vary,  is  in  use  in  the  Foreign  Office,  Colo- 
nial Office,  India  Office,  War  Office,  the  Admiralty,  the 
Treasury,  the  Board  of  Trade,  the  Local  Government 
Board,  and  the  Post  Office.  The  permanent  tenure  of 
office  contributes  greatly  to  the  efficiency  and  integrity 
of  the  British  civil  service.  Its  origin  is  to  be  traced 
to  the  fact  that  in  earlier  times  public  office  in  England 
was  a  species  of  real  property  held  by  the  incumbent 
for  life  or  in  fee.  There  still  exist  in  the  British  civil 
service  a  few  offices  which  are  held,  like  the  judicial 
positions,  for  life  or  good  conduct.  In  the  case  of  the 
great  majority  of  official  positions  in  the  civil  service 
the  crown  retains  the  right  of  dismissal.  This  right  is 
exercised,  however,  only  in  cases  of  incompetence  or 
dereliction  of  duty,  and  never  for  political  reasons 
or  to  make  room  for  a  necessitous  office-seeker.     For 


202      THE  STRUCTURE  OF  THE  GOVERNMENT 

entry  into  the  service  use  is  made,  in  most  of  the 
British  departments,  of  the  principle  of  open  competi- 
tion. 

In  the  United  States  the  method  of  appointment  and 
dismissal  in  the  executive  branch  of  the  federal  govern- 
ment has  proved  a  matter  of  serious  national  concern. 
A  very  few  of  its  officers  hold  their  posts,  as  do  the 
federal  judiciary,  on  a  life  tenure.  Some  offices,  as, 
for  example,  the  cabinet  positions,  are  held  during 
the  pleasure  of  the  President.  But  in  the  case  of  the 
great  majority  of  positions,  the  appointment  is  made 
for  a  stated  term  of  years,  usually  four.  In  the  actual 
operation  of  the  government,  the  difficulty  centres 
around  the  questions  of  dismissal  from  office  and  re- 
appointment at  the  expiration  of  the  statutory  term. 
It  is  clearly  to  be  desired  that  competent  officials  should 
be  left  undisturbed  in  their  positions,  whatever  be  their 
political  opinions.  Particulai'ly  is  this  the  case  with 
such  positions  as  those  in  the  customs  service,  the 
postal  service,  etc.,  where  the  duties  to  be  performed 
are  of  a  more  or  less  routine  nature,  and  cannot  be  said 
to  depend  for  their  proper  performance  on  harmony  of 
political  opinion  between  the  head  of  the  department 
and  his  subordinates.  On  the  other  hand,  there  is 
always  the  fear  that  the  too  great  certainty  of  continu- 
ance in  office  may  lead  to  official  stagnation  and  a 
perfunctory  discharge  of  duty.  The  federal  Constitu- 
tion is  not  explicit  on  the  subject  of  dismissal  from 
office.  The  extent  of  the  ri^ht  of  dismissal  is  reached 
by  inference  from  the  constitutional  provisions  in 
regard  to  appointment,  and  from  the  obvious  exigencies 
of  the  case.    The  power  of  appointment  in  the  case  of 


THE  EXECUTIVE  203 

ambassadors,  other  public  ministers  and  consuls,  and 
judges  of  the  Supreme  Court,  lies  with  the  President, 
subject  to  ratification  by  the  Senate ;  but  "  the  Con- 
gress may  by  law  vest  the  appointment  of  such  inferior 
officers  as  they  think  proper  in  the  President  alone,  or 
in  the  courts  of  law,  or  in  the  heads  of  departments."  ^ 
Following  the  decision  of  the  courts,  the  power  of  dis- 
missal is  incident  to  the  power  of  appointment.  Con- 
gress, it  is  true,  during  its  conflict  with  President 
Johnson,  undertook  to  limit  the  executive  power  of 
removal  by  passing  the  Tenure  of  Office  acts  (1867  and 
1869),  which  called  for  the  Senate's  ratification  of 
removal.  The  repeal  of  these  acts  (1887)  put  the 
matter  on  the  same  constitutional  footing  as  before. 

During  the  first  thirty  years  of  the  history  of  the 
Union  the  power  of  dismissal  was  not  used  as  a  means 
of  finding  positions  for  party  adherents.  Nearly  all  the 
federal  officials  held  office  during  the  pleasure  of  the 
executive,  and  dismissal,  except  for  cause,  was  not  con- 
templated. Madison  spoke  of  it  as  unconstitutional. 
The  act  of  1820,  prescribing  a  four  years'  term  of  office 
(still  subject  to  removal  at  will)  for  collectors  of  cus- 
toms and  many  other  federal  officers,  offered  a  starting- 
point  for  a  new  system.  With  the  advent  of  President 
Jackson  (1829)  was  inaugurated  the  "  spoils  system." 
Wholesale  removals  from  office  were  made,^  and  the 
places  thus  made  vacant  became  the  prizes  of  the  Presi- 
dent's political  followers.  This  disastrous  precedent 
thus  established  was  followed  by  later  administrations, 

•"  Constitution,  art.  ii,  §  2. 

2  In  the  first  twelve  months  of  his  presidency,  Jackson  made  734  re- 
movals from  federal  offices. 


204      THE  STRUCTURE  OF  THE  GOVERNMENT 

until  the  "  clean  sweep  "  of  offices  became  a  recurrent 
feature  of  American  politics.  Not  the  worst  feature  of 
the  system  has  been  the  frequent  incompetence  of  the 
persons  appointed  for  political  reasons  to  the  vacant 
offices. 

The  obvious  injustice  of  the  "  spoils  system  "  and  the 
inefficiency  thereby  occasioned  in  the  public  service 
led  to  a  movement  in  favor  of  civil  service  reform, 
which  culminated  in  the  Civil  Service  Act  of  1883.  The 
purpose  of  this  act  is  to  separate  as  far  as  possible  the 
civil  service  from  politics,  and  to  introduce  the  system 
of  appointments  by  merit  based  on  competitive  exam- 
inations. The  act  establishes  a  body  of  three  commis- 
sioners whose  duty  it  is,  at  the  request  of  the  President, 
to  aid  him  in  drawing  up  rules  directed  towards  the 
following  objects  that  open  competitive  examina- 
tions shall  be  held  in  all  branches  of  the  civil  service 
when  classified  for  the  purpose,  and  that  appointments 
to  office  shall  be  made  from  those  applicants  graded 
highest ;  that  appointments  at  Washington  shall  be 
apportioned  among  the  states  according  to  population  ; 
that  no  person  in  the  public  service  shall  be  under  ob- 
ligation to  contribute  to  any  political  fund,  nor  shall 
any  person  in  the  public  service  use  his  authority  to 
coerce  the  political  action  of  any  other  person.  The  act 
does  not  call  for  the  classification  of  persons  appointed 
by  the  President  and  ratified  by  the  Senate,  nor  of 
those  employed  merely  as  laborers.  There  are  also  a 
large  number  of  positions  which  are,  for  various  reasons, 
excepted  from  the  rules  ;  the  fourth-class  postmasters, 
who  number  nearly  65,000,  being  of  this  class.  Of  the 
310,000  posts  in  the  executive  civil  service,  over  one 


THE  EXECUTIVE  205 

half  are  now  subject  to  competitive  examination.  It  is 
evident  that  where  new  appointments  can  be  made  only 
on  a  basis  of  certified  fitness,  the  tendency  to  deliber- 
ately create  vacancies  will  diminish,  and  competent 
officials  will  invariably  be  retained  in  office.  Not  the 
least  merit  of  the  Civil  Service  Act  is  that  it  helps  to 
educate  opinion.  It  is  only  by  the  growth  of  a  vigorous 
public  feeling  in  condemnation  of  the  spoils  system 
that  the  evil  can  be  eradicated. 

READINGS  SUGGESTED 

Bodley,  J.  E.  C,  France  (1898),  vol.  i,  bk.  ii,  chap,  ii  (The  Chief 

of  the  State). 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897),  vol.  i,  chap.  ii. 
Dupriez,  Les  Ministres   dans  les  Principaux  Pays  d'Europe,  et 

•d'Amdrique  (1892),  vol.  i,  part  v,  vol.  ii,  part  vi. 
Burgess,  J.  W.,  Political  Science  and  Constitutional  Law  (1898), 

part  ii,  bk.  iii,  division  iii,  chap,  iii,  pp.  216-263. 

FURTHER  AUTHORITIES 

Burgess,  J.  W.,  Political  Science  and  Constitutional  Law  (1898), 

vol.  ii. 
Low,  S.,  Governance  of  England  (1904). 
Hart,  A.  B.,  Actual  Government  (1903). 
Ransome,  C,  Rise   of   Constitutional   Government   in   England 

(1883). 
Montesquieu,  Esprit  des  Lois  (1748). 
Moran,  T.  F.,  The  English  Government  (1903). 
Anson,  Sir  W.,  The  Law  and  Custom  of  the  Constitution,  part  i 

(1896). 
Ridges,  E.  W.,  Constitutional  Law  of  England  (1905). 
Stanwood,  E.,  History  of  the  Presidency  (1901). 
Reports  of  United  States  Civil  Service  Commission. 
Ford,  H.  L.,  Rise  and  Growth  of  American  Politics  (1900). 


206      THE  STRUCTURE   OF  THE  GOVERNMENT 


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CHAPTER  IV 

THE  JUDICIARY  AND  THE  ELECTORATE 

1.  The  Judicial  Office  and  its  Tenure.  —  2.  The  Relation  of  the  Courts 
to  the  Executive  and  to  the  Legislature.  —  3.  Administrative  Law 
and  Administrative  Courts.  —  4.  The  Electorate :  Evolution  of  So- 
called  Universal  Suffrage ;  the  Present  Suffrage  in  Leading  Coun- 
tries. —  5.  Criticism  of  Existing  Systems  ;  the  Case  of  Women,  of 
Negroes,  etc.  —  6.  Representation  of  Minorities. 

1.  The  Judicial  Office  and  its  Tenure.  The  judi- 
cial branch  of  the  government,  though  less  numerous 
than  the  executive  (in  its  wider  sense),  occupies  a  posi- 
tion no  less  important  in  the  organization  of  the  state. 
The  prime  function  of  the  judiciary,  performed  in  all 
states,  is  to  decide  upon  the  application  of  the  existing 
law  in  individual  cases.  The  essential  requisite  in  a 
judge  is  consequently  an  exact  knowledge  of  the  law. 
The  work  of  the  judiciary  is  thus  a  highly  technical 
function,  demanding  for  its  proper  accomplishment 
the  trained  intellect  of  a  specialist.  Whether  the  law  is 
right  or  wrong,  just  or  unjust,  is  a  secondary  matter  : 
the  duty  of  the  judge  is  to  adjudicate  upon  the  law  as 
it  is,  and  not  upon  the  law  as  it  ought  to  be.  It  is  far 
better  that  a  bad  law  should  work  injustice  in  an  indi- 
vidual instance  than  that  a  judge  by  deliberately  re- 
fusing to  recognize  it  should  impair  the  principle  of 
law  itself. 

In  actual  fact,  however,  judicial  decisions  are  far 
more   than  merely  declaratory  in  their  nature ;   they 


208      THE  STRUCTURE  OF  THE  GOVERNIVIENT 

contain  a  constructive  element  and  serve  to  expand  the 
existing  law  into  a  more  and  more  detailed  interpreta- 
tion. For  no  statute  can  be  so  minute  in  its  provisions 
as  to  contemplate  all  possible  cases,  and  to  admit  al- 
ways of  only  one  construction.  Where  the  letter  of 
the  law  is  silent,  the  judge  is  called  upon  to  attach  to 
it  the  meaning  which  may  be  considered  "  reasonable," 
that  is  to  say,  which  is  consistent  with  the  general 
principles  of  morality  and  public  policy.  In  countries 
such  as  England  and  the  United  States  this  principle 
is  carried  very  far ;  for  here  the  decisions  once  given 
are  viewed  as  precedents  for  future  ones.  Such  pre- 
cedents are  not,  of  course,  absolutely  binding,  but  the 
presumption,  where  identity  of  circumstances  can  be 
established,  is  vastly  in  their  favor.  The  process  of 
adjudication  thus  amounts  to  a  supplemental  form  of 
legislation,  and  a  large  part  of  existing  law  is  said  to 
be  "  made  "  by  the  judges. 

The  nature  of  judicial  functions,  viewed  in  this  light, 
clearly  demands  that  the  judiciary  must  be  as  impartial 
as  is  humanly  possible.  Not  only  must  their  own  pe- 
cuniary interests  be  unaffected  by  the  legal  decisions 
given  by  them,  but  they  must  be  removed  entirely  from 
the  play  of  political  interests.  It  is  for  this  reason  that  in 
a  well-ordered  government  the  judiciary  should  be  ade- 
quately paid  by  a  compensation  not  affected  by  the  num- 
ber and  nature  of  their  decisions,  and  should  enjoy  per- 
manent tenure  of  office  and  be  independent  of  the  good 
will  or  ill  will  of  the  other  branches  of  the  government. 
This  object  is  adequately  effected  in  the  national  gov- 
ernment of  the  United  States  ;  the  Constitution  (art.  iii, 
§  1)  prescribes  that  "the  judges,  both  of  the  supreme 


THE  JUDICIARY  AND  THE   ELECTORATE     209 

and  the  inferior  courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for 
their  services  a  compensation  which  shall  not  be  dimin- 
ished during  their  continuance  in  office."  ^  The  same 
is  true  in  the  case  of  Great  Britain.  The  English 
judges  until  the  close  of  the  seventeenth  century  held 
their  office  at  the  pleasure  of  the  crown,  a  position  ob- 
viously inconsistent  with  impartiality.  The  Act  of  Set- 
tlement (1701)  declares  that "  judges'  commissions  shall 
be  quamdiu  se  bene  gesserint,  and  their  salaries  as- 
certained and  established."  Removal  can  only  be  made 
"  upon  the  address  of  both  houses  of  Parliament."  ^  The 
position  of  the  judiciary  thus  established  has  never 
been  altered.  The  system  has  also  been  adopted  in  the 
British  colonies.  The  permanent  and  independent  tenure 
of  the  judges  thus  secured  in  the  United  States  and  in 
the  British  Empire,  and  found  also  in  France,  Prussia, 
and  other  leading  countries  is  unfortunately  not  uni- 
versal. The  commonwealths  of  the  United  States  are  a 
notable  exception.  In  many  of  these  a  false  conception 
of  the  principle  of  popular  sovereignty,  and  the  vicious 
influence  of  the  doctrine  of  "  rotation  in  office  "  has  led 
to  the  election  of  the  judges  by  the  people  for  a  stated 
term  of  years.  In  some  states,  it  is  true,  the  judges  are 
nominated  by  the  governor  or  elected  by  the  legislature  ; 
in  some  also  they  hold  office  during  good  behavior. 
But  the  majority  of  judicial  positions  in  the  state  gov- 
ernments are  held  by  election  for  a  stated  term,  often 

1  This  does  not  hold  good  of  territorial  judges,  whose  term  of  office 
is  fixed  at  four  years. 

^  Anson  describes  this  as  a  tenure  "  as  regards  the  crown  during  good 
behavior,  as  regards  Parliament  at  pleasure."  It  is  practically  a  per- 
manent tenure. 


210      THE   STRUCTURE   OF  THE  GOVERNMENT 

as  short  as  two  years.  Such  an  institution  cannot  be 
too  strongly  condemned.  It  exposes  the  judges  to  the 
influence  of  political  and  personal  motives  in  their  con- 
duct on  the  bench,  impairs  the  impartiality  of  their 
decisions,  and  inevitably  lowers  the  character  of  the 
judicial  body. 

2.  The  Relation  of  the  Courts  to  the  Executive 
and  to  the  Legislature.  Certainty  of  tenure  and  of 
compensation  guarantee  the  judiciary  against  being 
unduly  controlled  by  the  other  branches  of  the  govern- 
ment. The  question  next  arises,  whether  and  to  what 
extent  the  officers  of  the  legislative  and  executive 
departments  are  to  be  protected  from  the  power  of 
the  judiciary.  That  their  original  appointment  or  elec- 
tion is  not  made  by  the  judiciary  goes  without  saying. 
But  it  must  be  further  decided  whether,  while  they  are 
in  office,  the  legality  of  their  official  acts  is  to  be  sub- 
ject to  the  decision  of  the  courts.  Shall  the  judges  have 
power  to  decide  whether  the  legislature  or  the  execu- 
tive, or  any  part  of  the  executive,  has  acted  in  excess  of 
its  lawful  power?  To  an  American  unacquainted  with 
foreign  governments,  the  answer  seems  self-evident, 
for  the  principle  of  limited  constitutional  powers  and 
responsibility  before  the  courts  lies  at  the  basis  of  the 
American  system.  But  on  this  most  important  point  of 
public  law,  the  usage  of  modern  states  is  divided  between 
two  sharply  contrasted  systems.  In  the  United  States, 
the  Latin- American  Republics,  Great  Britain  and  her 
colonies,  the  officers  of  the  government  are  responsible 
before  the  law  courts.  The  complete  legal  immunity  of 
the  British  sovereign,  and  the  immunity  (except  by  im- 
peachment) of  the  President  of  the  United  States,  are 


THE  JUDICIARY  AND   THE   ELECTORATE     211 

exceptions  of  a  special  nature  which  need  not  be  con- 
sidered in  this  connection.  On  the  other  hand,  it  is  the 
prevalent  usage  in  the  continental  countries  of  Europe 
that  the  ordinary  courts  of  law  have  no  power  to  ques- 
tion tlie  legality  or  decide  as  to  the  constitutionality 
of  the  official  actions  of  the  legislative  and  executive 
officers.  A  closer  consideration  of  the  consequences  of 
•  these  antagonistic  principles  will  show  how  greatly  the 
relations  of  the  government  to  the  individual  citizens 
are  affected  thereby. 

The  case  of  the  British  Empire  is  less  complicated 
and  may  be  treated  first.  In  the  United  Kingdom  every 
servant  of  the  state  (except  the  king)  is  responsible 
for  his  actions  to  the  ordinary  courts  of  law.  "  Every 
official,"  says  Mr.  Dicey,^  "  from  the  Prime  Minister 
down  to  a  constable  or  a  collector  of  taxes,  is  under  the 
same  responsibility  for  every  act  done  without  legal 
justification  as  any  other  citizen.  The  Reports  abound 
with  cases  in  which  officials  have  been  brought  before 
the  courts,  and  made,  in  their  personal  capacity,  liable 
to  punishment  or  to  the  payment  of  damages  for  acts 
done  in  their  official  character  but  in  excess  of  their  law- 
ful authority."  Not  only  the  members  of  the  executive 
civil  service,  but  the  officers  and  men  of  the  army  are 
individually  liable  before  the  ordinary  tribunals  for  any 
unlawful  acts,  even  if  performed  at  the  command  of  a 
superior  officer.  "  The  position  of  a  soldier,"  says  the 
same  authority,  "  may  be,  both  in  theory  and  practice,  a 
difficult  one.  He  may,  as  it  has  been  well  said,  be  liable 
to  be  shot  by  a  court-martial  if  he  disobeys  an  order, 
and  to  be  hanged  by  a  judge  and  jury  if  he  obeys  it." 

■•■  Law  of  the  Constitution,  chap.  vi. 


212      THE  STRUCTURE  OF  THE  GOVERNMENT 

In  spite  of  the  apparent  anomaly  involved  in  the  last 
instance,  the  protection  afforded  to  individual  liberty 
by  this  responsibility  of  executive  officers  cannot  be 
overestimated.  In  the  case  of  the  British  legislature 
there  cannot,  of  course,  be  any  such  thing  as  a  statute 
made  in  excess  of  power.  For  since  the  Parliament 
(used  here  in  its  legal  sense  of  King,  Lords,  and  Com- 
mons) is  supreme,  every  statute  that  it  makes  is  legally- 
a  good  statute  and  cannot  be  questioned  by  the  courts. 
But  the  legislative  enactments  of  any  minor  body 
(such  as  a  county  council)  are  always  subject  to  be 
passed  upon  by  the  courts,  and  perhaps  set  aside  on 
grounds  of  illegality. 

It  is  in  such  countries  as  the  United  States  that  the 
principle  of  judicial  decision  on  the  validity  of  the  ac- 
tions of  the  government  has  the  greatest  consequences. 
Here,  as  in  England,  the  officers  of  the  executive 
are  responsible  to  the  courts  for  their  official  actions. 
But  this  is  by  no  means  all.  For  since  the  national 
and  state  legislatures  are  given  by  the  Constitution 
only  a  certain  definite  and  limited  power,  it  becomes 
the  duty  of  the  courts  to  decide  whether  or  not  the 
legislature  in  the  making  of  any  statute  has  confined 
itself  to  the  powers  it  legally  possesses.  Where  such 
is  not  the  case  the  court  (though  it  cannot  abolish  or 
amend  the  statute  itself)  can  refuse  to  apply  it  in  the 
individual  ease  before  it,  which  is  in  practice  equivalent 
to  declaring  the  statute  invalid.  Americans  are  apt  to 
regard  this  power  of  the  courts  as  a  necessary  conse- 
quence of  a  written  constitution.  For  how  else,  it  might 
be  asked,  can  the  legislature  and  the  executive  be  duly 
confined  to  the  power  granted  them  ?    Logical  as  this 


THE  JUDICIARY  AND   THE   ELECTORATE     213 

seems,  it  remains  true,  as  will  presently  be  shown  in 
the  eases  of  France  and  Germany,  that  the  existence 
of  a  written  constitution  is  not  always  accompanied  by 
this  revisional  power  of  the  ordinary  courts  of  law. 
That  such  an  institution  should  have  grown  up  in  the 
United  States  is  one  of  the  most  felicitous  features  of 
American  political  evolution.  The  germ  of  its  develop- 
ment is  found  under  the  colonial  governments,  from 
which  in  the  last  resort  appeal  might  be  taken  against 
any  action  of  the  legislature  or  executive  of  the  colony 
to  the  king  in  council.  The  written  charters  that  had 
been  so  familiar  in  colonial  history  and  still  existed  at 
the  Revolution  in  Massachusetts,  Rhode  Island,  and 
Connecticut  prepared  the  way  for  written  constitutions 
limiting  the  powers  of  the  organs  of  government.  The 
severing  of  the  connection  of  the  colonies  and  the  crown 
rendered  it  necessary  to  substitute  something  for  the 
appellate  jurisdiction  of  the  king  in  council.  Even  be- 
fore the  making  of  the  federal  Constitution  (1787}  the 
judiciary  of  the  new  state  governments  had  begun  to 
occupy  this  field.  Several  decisions  of  state  tribunals 
are  recorded  in  which  acts  of  the  legislatures  are  de- 
clared unconstitutional.  In  the  report  of  a  Virginia 
case  in  1782  in  which  this  point  was  raised,  it  is  stated 
that  "  Chancellor  Blair  with  the  rest  of  the  judges  was 
of  the  opinion  that  the  court  had  power  to  declare  any 
resolution  of  the  legislature  or  of  either  branch  of  it 
unconstitutional  and  void.^  "  The  federal  Constitution 
of  1787  did  not  in  terms  lay  down  this  function  of  the 
courts ;  but  the  proper  sanction  for  it  is  found  in  art.  iii, 
§  2,  and  in  art.  vi,  of  the  Constitution.  "  The  Judicial 
1  W.  W.  Willoughby,  Supreme  Court  of  the  United  States,  chap.  v. 


214      THE   STRUCTURE   OF  THE   GOVERNMENT 

Power,"  it  is  laid  down,  "  shall  extend  to  all  cases  .  ,  . 
arising  under  this  Constitution."  Moreover  "  this  Con- 
stitution and  the  Laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof  .  .  .  shall  be  the  supreme 
Law  of  the  Land :  and  the  Judges  in  every  State  shall 
be  bound  thereby."  The  case  of  Marbury  v.  Madison 
(1803),  in  which  an  act  of  Congress  was  declared  un- 
constitutional, definitely  established  the  precedent  for 
the  later  working  of  the  national  government.  The 
constitutional  relation  thus  established  between  the 
judiciary  and  the  other  branches  is  not,  however,  unique 
in  the  United  States.  In  the  Dominion  of  Canada,  for 
example,  the  judiciary  exercise  an  analogous  power  in 
their  interpretation  of  the  British  North  America  act, 
and  the  judges  under  the  federal  system  of  the  Aus- 
tralian commonwealth  are  entrusted  with  a  similar 
function. 

Widely  contrasted  with  the  relation  in  which  the 
American  courts  of  law  are  thus  seen  to  stand  as  re- 
gards the  Congress  and  the  officers  of  the  executive,  is 
the  position  occupied  by  the  courts  in  the  chief  conti- 
nental countries  of  Europe.  The  latter,  as  we  have 
seen,  are  (with  the  exception  of  Hungary)  countries 
with  written  constitutions.  Yet  the  courts  of  law  are 
not  found  to  exercise  the  function  of  declaring  the 
acts  of  the  legislature  unconstitutional.  In  such  coun- 
tries  as  France  and  Italy  this  is  not  so  surprising,  for 
these  are  not  federal  governments,  and  the  constitution 
in  these  cases  is  concerned  only  with  the  organization 
of  the  government,  and  with  the  protection  of  individ- 
ual liberty,  and  not  with  the  division  of  legislative 
power  between  central  and  local  authorities.  As  a  con- 


THE  JUDICIARY  AND   THE   ELECTORATE     215 

sequence  of  this  the  French  courts  do  not  question  the 
validity  of  a  statute.  Conceivably  a  French  statute 
might  be  grossly  unconstitutional ;  a  law,  for  instance, 
which  professed  to  abolish  the  republican  form  of  gov- 
ernment would  be  in  direct  violation  of  the  constitu- 
tion. But  in  practice  such  do  not  occur.  In  the  case 
of  the  German  empire,  which  is  federal,  and  which  has 
a  written  constitution,  one  would  expect  to  find  the 
courts  constantly  called  upon,  as  in  the  United  States, 
to  adjudicate  upon  the  constitutionality  of  state  and 
federal  laws.  In  point  of  fact  no  such  decisions  are 
given.  Isolated  cases  have  occurred  in  which  the  courts 
(the  federal  as  well  as  state)  have  declared  certain 
statutes  of  the  minor  German  legislatures  to  be  in  vio- 
lation of  the  state  constitution.  But  the  legality  of 
imperial  statutes  once  made  passes  unquestioned.  The 
bulk  of  authority,  supported  by  the  declaration  of  the 
Reichsgericht  (or  imperial  court)  itself,  is  in  favor  of 
admitting  that  such  a  revisional  power  exists.  Other 
authorities  take  an  entirely  opposite  view.  Since  no 
law  of  the  imperial  legislature  goes  into  force  until 
officially  promulgated  by  the  emperor,  these  writers 
regard  the  promulgation  as  itself  supplying  the  neces- 
sary test  of  constitutionality.  Be  this  as  it  may,  the 
fact  of  the  matter  remains  that  imperial  statutes  are 
always  accepted  by  the  courts  as  valid.  More  note- 
worthy still  is  the  fact  that  in  the  federal  republic  of 
Switzerland  the  same  practice  prevails ;  indeed  it  is  a 
provision  of  the  Swiss  constitution  that  every  statute 
passed  by  the  federal  assembly  must  be  accepted  as 
valid.* 

1  Constitution,  art,  113. 


216      THE   STRUCTURE   OF  THE  GOVERNMENT 

3.   Administrative    La^v    and   Administrative 

Courts.  But  the  absence  of  this  revising  power  of  the 
courts  is  not  the  only  point  in  which  Continental  practice 
is  at  variance  with  that  of  America.  The  whole  status  of 
executive  officers  before  the  law  is  different.  The  prin- 
ciple by  which  every  official  in  England  and  America 
is  responsible  to  the  courts  for  his  official  actions  does 
not  apply.  On  the  Continent  this  form  of  liability  is 
replaced  by  the  regulations  and  procedure  known  as 
administrative  law.  ^  Under  this  system  public  servants 
acting  in  their  official  capacity  are  not  subject  to  the 
jurisdiction  of  the  ordinary  tribunals,  but  can  only  be 
called  to  account  before  the  administrative  courts. 
These  are  specially  constituted  bodies  composed  for 
the  most  part  of  members  of  the  executive.  In  France, 
for  example,  there  is  a  graded  service  of  administrative 
courts  which  exist  parallel  with  the  ordinary  tribunals. 
In  each  department  the  prefect  and  his  prefectoral 
council  (appointed  by  the  president)  act  as  an  adminis- 
trative court.  Special  jurisdiction  is  exercised  by  the 
court  of  accounts,  councils  of  revision  (as  to  military 
recruiting),  colonial  courts  of  conflict,  and  certain  coun- 
cils for  public  instruction.  Final  jurisdiction  is  exer- 
cised by  the  council  of  state,^  a  body  nominated  by  the 

^  The  term  administrative  law  has  more  than  one  sense ;  as  used  in 
France  {droit  administratif)  it  refers  not  only  to  the  law  covering 
the  relation  of  the  administrative  authorities  towards  private  citizens, 
but  also  to  the  whole  of  the  public  law  relating  to  the  organization  of 
the  state.  In  English  it  is  more  commonly  used  in  the  former  restricted 
sense.  For  the  operation  of  administrative  law  in  continental  Europe 
the  student  may  consult  Simonet,  Traiti  Ele'mentaire  de  Droit  Public 
(1897),  and  Goodnow,  Comparative  Administrative  Law. 

^  For  the  precise  composition  of  this  council,  which  is  partly  an  ad- 
visory executive  body  and  partly  a  judicial  tribunal,  consult  De  la  Eigne 


THE  JUDICIARY  AND   THE  ELECTORATE     217 

president.  A  special  body  (the  tribunal  of  conflicts), 
made  up  of  equal  representation  from  the  two  kinds  of 
courts,  together  with  the  ministers  of  justice  and  two 
added  members,  decides  on  cases  of  disputed  compe- 
tence. The  jurisdiction  of  administrative  courts  over 
official  actions  is  not  indeed  quite  without  exception. 
"  The  ordinary  courts  have  as  a  result  of  statutory  pro- 
vision the  entire  control  of  the  matter  of  expropriation 
or  the  exercise  of  the  right  of  eminent  domain.  Again, 
arrests  made  by  the  administration  are  under  the  con- 
trol of  the  ordinary  courts  as  a  result  of  the  Penal  Code. 
It  is  true  also  that  where  the  government  or  a  depart- 
ment of  the  government  becomes  a  party  to  an  ordinary 
commercial  contract  the  jurisdiction  is  in  part  given 
to  the  ordinary  courts."  ^  But  in  the  main  the  state- 
ment holds  good  that  in  France,  and  in  constitutional 
countries  generally,  conflicts  between  individuals  and 
the  administration  are  settled  by  the  administration 
itself. 

The  administrative  system  of  courts  originated  in 
France  with  the  extension  of  the  absolute  centralized 
monai'chy,  which  tended  to  supplant  by  royal  officials 
the  older  local  tribunals.  The  Constituent  Assembly 
of  1789  expressly  adopted  the  principle  of  executive 
courts  for  passing  upon  the  acts  of  the  executive.  In 
doing  this  they  hoped  to  free  the  executive  from 
being  unduly  dependent  on  the  judicial  branch  of 
the  government,  and  found  the  warrant  for  their 
action  in    the  familiar  dogma   of    the    separation    of 

de  Villeueuve,  EUments  de  Droit  Constitutionnel  Franqais,  part  i,  chap, 
iii,  §  2,  art.  iii. 

^  Goodnow,  Comparative  Administrative  Law. 


218      THE   STRUCTURE   OF  THE   GOVERNMENT 

powers.  "  The  constitution  will  be  equally  violated, 
if  the  judiciary  may  intermeddle  with  administrative 
matters  and  trouble  administrative  officers  in  the 
discharge  of  their  duties.  .  .  .  Every  act  of  the  courts 
of  justice  which  purports  to  oppose  or  arrest  the  action 
of  the  administration,  being  unconstitutional,  shall  be 
void  and  of  no  effect."  ^  The  principle  thus  established 
has  been  adopted  by  the  successive  governments  that 
have  ruled  over  France.  Though  nominally  abolished 
at  the  inception  of  the  third  republic,  the  technical 
interpretation  of  the  decree  of  repeal  has  been  such 
as  to  render  it  ineffectual  in  practice.  Theoretically 
dependent  on  the  principle  of  distributed  powers,  it  has 
really  commended  itself  as  a  means  of  strengthening  the 
hands  of  the  executive  government.  Some  writers  have 
indeed  sought  to  show  that  the  administrative  courts 
themselves  afford  a  valid  protection  of  individual  lib- 
erty. But  the  bulk  of  the  evidence  seems  to  prove  that 
the  rights  of  the  individual  are  of  necessity  sacrificed 
under  a  system  in  which  the  executive  may  be  at  one 
and  the  same  time  the  aggressor  and  the  judge  of  the 
aggression. 

4.  The  Electorate :  Evolution  of  So-called  Uni- 
versal Suffrage  in  Leading  Countries.  In  speak- 
ing of  the  executive,  legislative,  and  judicial  branches 
of  government,  reference  has  frequently  been  made  to 
the  election  of  the  officials  of  these  departments  by  the 
people.  Let  us  therefore  conclude  the  discussion  of 
the  organs  of  government  by  a  brief  treatment  of  the 
electorate.   The  body  thus  designated  is  not  identical 

1  Instructions  to  the  Law  of  Aug.  16-24,  1790.  Cited  by  Goodnow, 
op.  cit. 


THE  JUDICIARY   AND   THE   ELECTORATE     219 

with  the  whole  body  of  citizens.  A  citizen  means  any- 
individual  member  of  a  state,  male  or  female,  who  owes 
it  allegiance  and  who  may  claim  its  protection,  but  the 
electorate  only  includes  those  who  under  the  suffrage 
laws  of  that  particular  state,  enjoy  the  right  to  vote. 
The  electorate,  or  voters,  are  sometimes  spoken  of  as 
the  "  political  people,"  to  distinguish  them  from  those 
who  have  no  direct  legal  share  in  the  conduct  of  public 
affairs.  The  French  constitution  of  1791,  anxious  to 
harmonize  the  principle  of  popular  sovereignty  with 
a  very  restricted  suffrage,  spoke  of  their  two  classes 
as  "  active  and  passive  citizens." 

The  right  of  the  general  body  of  the  people  to  vote 
for  representatives  to  govern  them  is  the  corner  stone 
of  the  free  institutions  of  Great  Britain  and  Amer- 
ica. The  origin  of  this  representative  government  lies 
hidden  at  the  very  beginnings  of  Anglo-Saxon  in- 
stitutions. In  Saxon  England  we  find  every  town- 
ship sending  up  an  elected  reeve  and  four  men  to 
represent  it  in  the  court,  or  general  meeting,  of  the 
shire.  It  is  presumed  that  in  such  early  elections  all 
free  men  had  a  part.  But  at  the  very  beginnings  of 
parliamentary  government  in  England  the  right  to 
vote  tended  to  restrict  itself  to  owners  of  land.  This 
was  only  natural  in  a  country  like  England  in  the  fif- 
teenth century,  where  wealth,  social  standing,  and 
ownership  of  land  were  almost  identical  terms.  A 
statute  of  Henry  VI  (1430)  limited  the  right  to  vote 
in  county  elections  to  residents  possessing  a  freehold 
worth  forty  shillings  a  year.^  The  value  of  money 
having  changed  since  the  fifteenth  century  in  a  ratio 
^  Anson,  Law  and  Custom  of  the  Constitution,  part  i,  chap,  v,  sec.  ii,  §  1. 


220      THE  STRUCTURE  OF  THE  GOVERNMENT 

of  at  least  oue  to  fifteen,  this  means  a  quite  high  pro- 
perty qualification.  Although  the  clause  requiring 
residence  fell  into  disuse,  this  statute  governed  the 
franchise  in  the  English  counties  for  four  hundred 
years.  In  the  boroughs,  too,  the  suffrage,  though  vary- 
ing greatly  from  town  to  town,  rested  for  the  most 
part  either  on  the  possession  of  real  estate  or  the  pay- 
ment of  taxes.  Thus  it  came  about  that  in  the  course 
of  time  the  right  to  vote  became  permanently  associated 
with  the  holding  of  property.  This  political  fact  was 
accompanied,  as  is  usually  the  case,  by  an  explanatory 
political  theory.  The  property-owner  was  viewed  as 
having  a  stake  in  the  community,  and  his  vote  was 
regarded  as  the  consequence,  not  of  his  personal 
citizenship,  but  of  his  property.  In  the  American 
states  in  the  early  years  of  their  independence  this 
theory  was  prevalent.  The  suffrage,  and  with  it  the 
right  to  be  elected,  rested  on  quite  restrictive  property 
qualifications.  Even  in  Revolutionary  France  the  first 
constitution  (1791)  included  among  its  "active  citi- 
zens" only  those  who  paid  annually  a  "  direct  tax  equal 
at  least  to  the  value  of  three  days'  labor." 

But  the  democratic  ideas  which  worked  themselves 
out  in  the  philosophy  of  the  eighteenth  century  and  in 
the  French  and  American  revolutions  gradually  led  to 
the  dominance  of  a  quite  different  view.  This  was  the 
principle  of  (so-called)  "  universal  suffrage,"or  the  right 
of  all  adult  capable  citizens  to  vote,  by  virtue  of  their 
being  such,  and  irrespective  of  the  holding  of  property. 
This  doctrine  was  proclaimed  by  the  Jacobins,  or  ex- 
treme republicans  among  the  French  revolutionists, 
though  even  among  these  only  a  minority  considered 


THE  JUDICIARY  AND  THE  ELECTORATE     221 

that  women  should  share  in  this  "universal  right."  ^ 
The  influence  of  the  same  theory  was  seen  in  America 
in  the  early  part  of  the  nineteenth  century,  when  the 
states  abandoned  the  principle  of  a  property  qualifica- 
tion, and  moved  nearer  and  nearer  to  manhood  suf- 
frage. In  England  too,  where  abstract  political  theories 
have  but  little  weight,  the  practical  injustice  of  the 
restricted  franchise  led  to  the  long  agitation  culminat- 
ing in  the  Parliamentary  Reform  of  1832.  The  various 
governments  which  have  modeled  themselves  on  those 
of  Britain  and  the  United  States  have  adopted  also 
the  principle  of  universal  suffrage. 

In  the  democratic  countries  of  to-day,  the  people 
entitled  to  vote  represent  a  fraction  of  the  population 
ranging  from  one  fifth  downwards.  The  general  prin- 
ciple is  that  of  the  admission  to  the  polls  of  all  the 
adult  male  citizens  of  mental  and  moral  capacity.  The 
principle  is  extremely  simple,  and  in  some  states  is 
applied  to  the  whole  community  by  a  single  and  com- 
prehensive law.  Thus,  for  example,  in  France,  the  law 
of  July  7, 1874,  grants  the  suffrage  to  all  male  citizens 
of  France  at  least  twenty-one  years  of  age.  Similarly 
the  right  to  vote  for  members  of  the  German  Reichstag, 
the  popular  house  of  the  imperial  legislature,  is  granted 
by  the  constitution  to  all  resident  male  citizens  of  the 
German  Empire  who  have  reached  the  age  of  twenty- 
five.^  In  the  United  States,  the  suffrage,  though  ex- 
tremely democratic  both  in  principle  and  practice,  is 
extremely  complex  in  its  legal  details.  The  Constitution 

1  For  the  question  of  female  suffrage  during  the  French  Revolution, 
Aulard,  Histoire jiolitique  de  la  Revolution  Franqaise,  may  be  consulted. 
^  Constitution  of  the  Empire,  art.  20. 


222      THE   STRUCTURE   OF  THE   GOVERNMENT 

leaves  the  matter  in  the  hands  of  the  state  govern- 
ments ;  in  voting  for  members  of  the  federal  House  of 
Representatives,  the  voters  (Constitution,  art.  i,  §  2) 
"  in  each  State  shall  have  the  Qualifications  requisite 
for  Electors  of  the  most  numerous  Branch  of  the  State 
Legislature."  To  this  is  to  be  added  the  provision 
of  the  Fifteenth  Amendment :  "  The  right  of  citizens 
of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any  State  on  ac- 
count of  race,  color,  or  previous  condition  of  servitude." 
The  suffrage  laws  of  the  separate  states,  though  all 
agree  in  excluding  persons  under  twenty-one  years  of 
age,  vary  very  much  in  reference  to  qualifications  and 
exclusions.  Four  of  the  states  (Colorado,  Idaho,  Utah, 
and  Wyoming)  grant  the  full  suffrage  to  women. 
Most  of  them  admit  as  voters  only  citizens  of  the 
United  States ;  others  grant  the  suffrage  to  aliens, 
otherwise  qualified,  who  have  declared  their  intention 
to  become  citizens.  The  term  of  necessary  residence 
in  the  state  previous  to  voting  varies  from  three  months 
(Maine)  to  two  years  (Alabama  and  others);  so  also 
does  the  requisite  term  of  residence  (if  any)  in  county, 
town,  or  precinct.  The  general  list  of  exclusions  com- 
prises insane  persons,  idiots,  and  felons.  Most  states 
exclude  paupers,  and  some  specifically  exclude  the 
Chinese  (California,  Nevada,  Oregon).  In  several  of 
the  Southern  states  peculiar  suffrage  laws  are  found 
which  are  intended  to  circumvent  the  Fifteenth  Amend- 
ment in  order  indirectly  to  prevent  the  negroes  from 
voting.  Thus  in  Louisiana  the  voting  list  comprises 
all  citizens  of  the  United  States  who  are  able  to  read 
and  write,  or  who  own  three  hundred  dollars'  worth  of 


THE  JUDICIARY  AND  THE  ELECTORATE     223 

property  assessed  In  their  names,  or  whose  fathers  or 
grandfathers  were  entitled  to  vote  on  January  1, 1867. 
In  the  case  of  the  United  Kingdom  the  parliamen- 
tary franchise  is  of  the  most  complicated  character. 
The  reason  for  this  is  that  Parliament  has  never  seen 
fit  to  revise  the  existing  franchise  at  a  single  stroke 
and  to  repeal  all  previous  statutes  and  substitute  for 
them  a  single  and  uniform  suffrage  law.  Instead  of 
this  each  measure  of  parliamentary  reform  has  only 
partially  repealed  existing  legislation.  Three  great 
statutes  have  been  passed  in  the  nineteenth  century  in 
extension  of  the  right  to  vote.  The  Reform  Act  of 
1832  widened  the  old  county  franchise  by  including 
tenants  as  well  as  owners  of  land,  and  gave  the  borough 
franchise  to  rate-paying  householders  occupying  prem- 
ises worth  at  least  ten  pounds  a  year.  The  Reform  Act 
of  1867  further  extended  the  franchise.  Finally  the 
Representation  of  the  PcoidIc  Act  of  1884  establishes 
both  in  towns  and  county  a  very  democratic  suffrage : 
a  person  entitled  to  vote  must  be  of  the  male  sex,  at 
least  twenty-one  years  of  age ;  must  be  either  the  owner 
or  the  lessee  of  land  or  premises  of  a  certain  yearly 
value,  the  sum  varying  according  to  the  nature  of  the 
tenure ;  or  else  must  occupy  or  be  a  lodger  in  fixed 
premises  of  a  certain  yearly  value,  or  on  which  the 
local  rates  have  been  paid.  In  addition  to  this  i3ersons 
may  be  qualified  by  virtue  of  the  remnants  of  earlier 
unrepealed  laws  ;  they  may  for  example  be  voters  by 
virtue  of  being  born  and  resident  freemen  of  certain 
towns,  or  liverymen  of  one  of  the  city  companies  of 
the  city  of  London,  or  as  graduates  on  the  electoral 
roll   of   Oxford,  Cambridge,  Dublin,  or  London,  etc. 


224      THE  STRUCTURE  OF  THE  GOVERNMENT 

The  list  of  excluded  persons  comprises  aliens  not  nat- 
uralized, idiots,  convicted  felons,  and  members  of  the 
peerage.  It  is  impossible  in  short  compass  to  give  the 
exact  details  of  the  parliamentary  franchise  in  the 
United  Kingdom.  For  fuller  information  reference 
may  be  made  to  the  first  volume  of  Sir  William  An- 
son's "  Law  and  Custom  of  the  Constitution."  The  com- 
plex historical  aspect  of  the  present  English  suffrage 
and  its  practically  democratic  operation  is  highly  char- 
acteristic of  English  political  institutions.  Little  heed 
is  taken  of  the  logical  requirements  of  abstract  politi- 
cal theory  provided  that  the  practical  operation  is  not, 
to  an  appreciable  degree,  repugnant  to  the  demands  of 
common-sense  justice. 

5.  Criticism  of  Existing  Systems ;  the  Case  of 
Women,  of  Negroes,  etc.  From  what  has  been  said 
of  existing  suffrages  we  may  now  turn  to  consider  the 
validity  of  the  theory  of  so-called  universal  suffrage. 
In  the  first  place  it  is  to  be  noted  that  the  suffrage  in 
question  is  by  no  means  universal.  It  nowhere  includes 
more  than  a  minority  of  the  population.  It  omits 
everywhere  children  and  minors,  and  persons  of  un- 
sound mind  and  of  proven  criminality.  It  leaves  out 
almost  everywhere  the  female  half  of  the  population. 
That  the  right  to  vote  cannot  be  absolutely  and  liter- 
ally universal  requires  no  proof  :  no  amount  of  politi- 
cal dogma  could  make  it  appear  reasonable  that  a 
ballot  should  be  deposited  by  a  two-year-old  child  or 
by  an  incapable  idiot.  That  the  principle  of  exclusion 
must  be  adopted  is  an  actual  if  not  a  logical  necessity. 
It  is  extremely  important  to  duly  appreciate  this  fact. 
Universal  suffrage  everywhere  omits  a  large  number 


THE  JUDICIARY  AND   THE  ELECTORATE     225 

of  citizens,  and  the  reason  is  in  every  case  that  the  ex- 
cluded classes  are  composed  mainly  of  persons  who,  in 
the  opinion  of  those  who  vote,  are  not  fitted  to  exer- 
cise the  right  of  voting.  It  is  to  be  observed  that  the 
excluded  class  is  not  in  reality  composed  entirely  of 
persons  unfit  to  vote.  No  one  would  claim  that  no 
young  men  of  twenty  are  ever  fit  to  vote,  and  that  all 
men  over  twenty-one  are  always  fit  to  vote.  The  exclu- 
sion merely  means  that  on  the  average  persons  under 
twenty-one  have  not  the  required  capacity,  and  that 
those  over  twenty-one  have  it.  It  appears,  then,  there 
is  no  such  thing  in  theory  or  in  practice  as  an  abso- 
lute and  universal  right  to  vote.  Nor  is  the  exclusion 
of  any  class  of  citizens,  in  and  of  itself,  a  violation  of 
any  abstract  law  of  political  justice.  Every  such  ex- 
clusion must  rest  for  its  justification  on  the  question 
whether  the  excluded  persons  are  —  taken  on  the  aver- 
age —  not  capable  of  the  political  judgment  required 
in  voting. 

The  general  view  thus  obtained  may  be  applied  to 
two  of  the  prominent  questions  of  the  time  in  regard 
to  the  suffrage,  the  right  of  women  and  of  negroes  to 
exercise  a  vote.  The  political  rights  of  women  have 
been  much  agitated  during  the  last  fifty  years,  but  as 
yet  no  very  great  advance  has  been  made  in  the  direc- 
tion of  female  suffrage.  In  the  United  States,  as  has 
been  said  above,  four  of  the  states  grant  to  women  on 
equal  terms  with  men  the  full  suffrage  both  for  local 
and  state  elections.  In  addition  to  this  women  vote  in 
school  elections  in  nineteen  states  ;  they  vote  in  Kan- 
sas in  municipal  elections ;  in  Iowa  and  Montana  when 
a  vote  of  the  citizens  is  taken  on  a  proposed  issue  of 


226      THE   STRUCTURE   OF  THE   GOVERNMENT 

municipal  bonds,  and  in  New  York  state  by  a  law  of 
1901  women  owning  assessed  village  pi'operty  have  a 
similar  voice  in  a  local  referendum.  As  against  this  it 
is  to  be  recorded  that  the  proposal  to  admit  women  to 
the  full  suffrage  has  recently  been  defeated  in  New 
Hampshire  (1903)  and  in  several  Western  states 
(South  Dakota,  Washington,  Oregon).  Nor  is  the 
extension  of  the  right  to  vote  for  members  of  the  na- 
tional legislature  granted  to  women  anywhere  in  Eu- 
rope, except  in  the  case  of  widows  who  own  property 
in  the  kingdom  of  Italy.  In  England  women  cannot 
vote  at  parliamentary  elections,  but,  if  qualified,  may 
vote  in  any  local  elections.  Women  are  granted  the 
full  suffrage  in  New  Zealand  and  in  the  states  of  Aus- 
tralia. The  suffrage  in  the  latter  case  carries  with  it,  as 
in  the  United  States,  the  right  to  vote  for  members  of 
the  federal  house  of  representatives.^ 

Historically  considered  the  exclusion  of  women  is 
only  a  part  of  the  general  economic  and  legal  posi- 
tion of  dependence  in  which  women  have  been  placed. 
Indeed  the  word  "  exclusion "  is  hardly  applicable. 
What  has  happened  has  been  negative  rather  than  pos- 
itive. Until  quite  recent  times  only  a  very  small  part  of 
the  men  of  the  community  had  the  right  to  vote.  It  is 
more  accurate  to  say  that  the  women  have  never  been 
admitted  than  that  they  have  been  expressly  excluded. 
The  arguments  of  John  Stuart  Mill  and  others  in  favor 
of  female  suffrage  have  turned  partly  on  abstract  jus- 
tice —  the  claim  of  every  person,  as  a  person,  to  vote  — 
and  partly  on  the  idea  that  women  are  in  the  main  as 
well  qualified  as  men,  or  at  any  rate  sufficiently  quali- 
*  See  "  Political  Woman  in  Australia,"  Nineteenth  Century,  vol.  Ivi. 


THE  JUDICIARY  AND   THE   ELECTORATE     227 

fied.  The  first  contention  seems  quite  invalid :  the 
principle  of  exclusion  is,  as  has  been  shown,  a  necessary 
one.  The  second  contention  remains  still  a  debatable 
point.  As  against  these  arguments  it  has  been  urged 
that  women,  being  mentally  inferior  to  men  in  those 
particular  aptitudes  required  for  the  proper  exercise 
of  political  rights,  had  better  be  excluded.  It  is  also 
claimed  that  women  are  for  the  most  part  dependent 
for  their  political  convictions  on  the  opinions  of  a  hus- 
band, father,  or  other  male  relation;  they  are  thus  al- 
ready represented  in  an  indirect  fashion,  and  to  give 
them  a  vote  would  unfairly  duplicate  the  voting  power 
of  their  male  relations.  On  these  grounds  a  distinction 
is  sometimes  made  between  the  claims  of  married  and 
•unmarried  women. 

The  other  vexed  question  relating  to  the  suffrage  is 
that  of  permitting  the  negro  race  to  vote.  Every  one 
knows  that  the  Southern  states  —  the  white  people  of 
the  Southern  states  —  would  never  have  conferred  even 
a  nominal  voting  power  on  the  black  race  except  by 
compulsion.  This  compulsion  has  been  found  in  the 
amendment  to  the  Constitution  already  mentioned.  Its 
adoption  was  due  partly  to  the  desire  to  make  use  of 
the  negro  vote  for  political  purposes,  and  partly  to  the 
force  of  public  opinion  generated  by  the  idea  that 
abstract  principles  of  justice  gave  the  negro  a  right  to 
the  suffrage.  There  has  resulted  the  rather  absurd 
situation  whereby  many  persons  in  the  United  States 
have  been  ardent  champions  of  the  supposedly  inherent 
political  rights  of  the  blacks  while  willing  to  apply  an 
entirely  different  criterion  to  the  case  of  women,  both 
the  white  and  the  black.    Women  are  excluded  as  unfit 


228      THE  STRUCTURE  OF  THE  GOVERNMENT 

to  vote,  and  blacks  are  included  on  the  ground  that 
nobody  can  be  unfit  to  vote.  The  exact  extent  of  polit- 
ical capacity  of  these  two  classes  is  a  matter  that  would 
admit  of  some  discussion ;  but  it  seems  hardly  rea- 
sonable to  think  that  an  illiterate  and  in  many  ways 
debased  negro  population  can  have  a  political  claim 
superior  to  that  of  educated  and  intelligent  American 
women.  Unhappily  a  false  and  hopelessly  abstract  view 
of  political  rights  and  the  rigidity  of  the  federal  Con- 
stitution prevents  a  rectification  of  the  political  error 
made  in  admitting  the  negroes  to  the  suffrage.  In  prac- 
tice the  Southern  states  have  found  various  means  to 
render  the  negro  vote  largely  illusory.  But  legally  the 
anomaly  persists. 

6.  Representation  of  Minorities.  A  question  of 
especial  interest  in  reference  to  voting  is  the  repre- 
sentation of  minorities.  If  the  members  of  a  national 
legislature  were  all  elected  out  of  the  whole  community 
on  one  "  general  ticket,"  — each  voter  voting  as  many 
times  as  there  were  places  to  be  filled,  —  it  is  clear  that 
there  would  be  a  minority  group  of  voters  who  elected 
none  of  their  candidates.  So  glaring  an  illustration  of 
the  "  unrepresented  minority  "does  not  in  practice  occur. 
The  need  of  representing  at  least  a  part  of  the  people 
in  each  district  naturally  leads  to  the  division  of  the 
whole  country  into  districts  from  each  of  which  a  can- 
didate, or  a  group  of  candidates,  is  elected.  But  even 
with  such  a  division  into  districts,  a  number  of  the 
people  in  each  throw  away  their  votes  on  a  candidate 
not  elected  and  thus  remain  in  a  sense  unrepresented. 
This  evil  may  be  aggravated  if  those  in  power  so  divide 
up  the  election  districts  as  to  make  the  most  of  the 


THE  JUDICIARY  AND  THE  ELECTORATE     229 

votes  of  the  adherents  of  their  own  party  and  to  make 
the  least  of  the  votes  of  their  opponents.  This  is  the 
process  known  as  gerrymandering,  and  unfortunately 
only  too  familiar  in  modern  politics.  At  times  it  is 
effected  by  so  allotting  the  electoral  districts  that  the 
adverse  voters  will  be  too  few  everywhere  to  carry  any 
district.  If  this  is  impossible  the  districts  are  so  con- 
trived as  to  "bunch  together  "the  hostile  voters,  and 
thus  it  results  that  when  they  do  carry  a  district,  they 
carry  it  by  a  needlessly  large  majority,  and  so  practi- 
cally lose  a  lot  of  voters. 

Much  attention  has  been  given  to  the  problem  of 
how  to  represent  the  minority,  and  various  schemes 
have  been  proposed  for  this  purpose,  and  to  some 
extent  adopted.  Of  these  a  few  may  be  mentioned. 
The  most  noteworthy  of  all,  historically,  is  the  scheme 
of  Mr.  Thomas  Hare,  which  attracted  considerable 
attention  in  England  in  the  middle  of  the  nineteenth 
century.^  This  was  the  plan  of  "  self-made  constitu- 
encies." Instead  of  dividing  the  country  into  districts, 
it  was  proposed  that  any  candidate  should  be  elected 
for  whom  sufficient  votes  were  cast  anywhere  in  the 
country.  The  number  required  was  to  be  found  by 
dividing  the  number  of  voters  by  the  number  of  seats 
in  Parliament  to  be  filled.  By  this  means  any  par- 
ticular minority  grouj),  instead  of  being  scattered  in 
district  constituencies,  and  everywhere  swamped,  could 
combine  themselves  into  a  united  vote.  The  scheme, 
however,  demands  too  elaborate  a  political  activity  on 
the  part  of  each  voter  to  be  at  all  practical.^ 

1  Thomas  Hare,  The  Election  of  liepresentatives,  1859. 

2  For  criticism  see  Bageliot,  English  Constitution,  chap.  vL 


230     THE  STRUCTURE   OF  THE  GOVERNMENT 

Another  method  of  minority  representation  is  the 
plan  of  "  limited  voting."  This  is  used  whenever  sev- 
eral candidates  are  to  be  elected  to  form  a  board 
or  council ;  it  would  not  apply  to  districts  where 
only  one  candidate  is  to  be  elected.  Each  voter  is 
allowed  to  vote,  not  for  as  many  candidates  as  there 
are  places  to  fill,  but  only  a  limited  number  of  times. 
For  example,  in  the  elections  to  a  city  council,  there 
may  be  twelve  places  to  fill,  but  each  voter  has  only 
seven  votes.  The  result  is  to  elect  seven  members  of 
one  political  party,  and  five  of  the  other.  No  one  party 
could  elect  all  unless  strong  enough  to  divide  its  ad- 
herents into  two  distinct  voting  groups,  and  still  defeat 
the  other  party.  Such  a  system  meets  the  case  of 
representing  a  second  party,  but  may,  of  course,  leave 
a  further  majority  unrepresented.  Similar  to  this  is 
the  cumulative  vote.  In  this  plan,  where  a  niunber  of 
persons  are  to  be  elected,  each  voter  may  vote  once  for 
each  of  several  candidates,  or  give  all  his  votes  to  one. 
Thus,  if  twelve  candidates  had  to  be  chosen,  a  very 
feeble  minority  could  get  a  representative  if  each  per- 
son gave  all  his  votes  to  the  same  candidate. 

In  practically  all  elections  it  happens  that  the  elected 
candidate  gets  more  than  enough  votes  to  elect  him. 
Only  in  rare  instances  will  he  happen  to  get  just  the 
necessary  odd  vote  and  no  more.  Tlie  surplus  votes, 
therefore,  again  constitute  an  unrejn-esonted  minority. 
To  meet  this  difficulty  there  has  been  contrived  the 
device  of  "  proportional  representation."  Here  the 
voter  is  called  upon  to  indicate  not  only  his  choice  of 
a  candidate,  but  the  names  he  would  choose  as  a  second 
or  third  choice,  and  so  on.    The  surplus  votes  of  each 


THE  JUDICIARY  AND  THE   ELECTORATE     231 

elected  candidate  are  then  handed  on  to  the  voter's 
second  choice,  or,  if  not  needed  there,  to  the  third,  etc. 
The  difficulty  lies  in  deciding-  which  are  to  be  con- 
sidered the  tickets  that  elected  the  first  candidate,  and, 
consequently,  to  which  one  the  votes  are  to  be  given 
away.  In  practice  this  can  be  done  only  by  lot.  This 
system  has  been  put  in  practice  in  Tasmania,  in  the 
city  constituencies.^  Adverse  critics  have  pronounced 
it  an  "arithmetical  jungle."  A  quite  distinct  form  of 
minority  representation,  directed  towards  a  particular 
political  end,  is  found  in  the  elections  of  the  kingdom 
of  Prussia.  It  is  used  in  the  elections  for  the  Prussian 
parliament,  though  not,  of  course,  in  those  for  the  im- 
perial Reichstag.  The  voters  are  divided  into  three 
classes,  not  numerically,  but  according  to  the  taxes 
that  they  pay.  If  the  total  taxation  of  the  district 
amounts  to  a  certain  sum,  then  the  first  class  is  made 
up  of  the  richest  property-owners  in  sufficient  number 
to  represent  one  third  of  the  taxes.  The  second  class 
represents  the  next  third  of  the  taxes,  and  the  third 
class  the  rest.  Each  class  chooses  an  equal  number  of 
"  electors "  for  an  electoral  college,  and  this  latter 
makes  the  actual  selection  of  the  members  of  Parliament. 
It  can  be  seen  at  once  that  the  two  upper  classes,  voting 
together,  though  representing  only  a  minority  of  the 
people,  can  absolutely  outvote  the  third.  Much  the 
same  plan  is  adopted  in  Prussian  local  elections.  To 
American  ideas  this  system  is  grossly  unjust.  The 
Socialist  party  in  Prussia  has  largely  abstained  from 
voting  in  Prussian  elections  rather  than  accept  a  vote 
on  such  conditions.  It  can  only  be  defended  on  the 
1  See  Jethro  Brown,  The  New  Democracy. 


232     THE  STRUCTURE  OF  THE  GOVERNMENT 

principle  that  property,  not  the  citizens  personally,  is 
the  thing  to  be  represented  in  a  legislative  body. 

READINGS  SUGGESTED 
Dicey,  A.  V.,  Law  of  the  Constitution  (4th  edition,  1893),  part  ii, 

chap.  xii. 
Willoughby,  W.  W.,  The  Supreme  Court  of  the  United  States 

(1890),  chap.  V. 
Schouler,  J.,  Constitutional  Studies  (1897),  part  iii,  chap.  iv. 
Bradford,  G.,  The  Lesson  of  Popular  Government  (1899),  vol.  i, 

chap.  i. 

FURTHER   AUTHORITIES 
Von  Hoist,  H.,  Constitutional   Law  of  the   United   States   of 

America  (1887). 
Goodnow,  F.,  Comparative  Administrative  Law  (1897). 
Taswell-Langmead,  English  Constitutional  History  (5th  edition, 

1896). 
De  la  Eigne  de  Villeneuve,  Elements  de  Droit  Coustitutiounel 

Frangais. 
Arndt,  A.,  Staatsrecht  des  Deutschen  Reiches  (1901). 
H^lie,  Les  Constitutions  de  la  France  (1880). 
Freeman,  E.  A.,  Comparative  Politics,  Lecture  V  (1873). 
Stubbs,  W.,  Constitutional  History  of  England  (4th  edition,  1883). 
Ridges,  E.  W.,  English  Constitutional  Law  (1905). 
Brown,  W.  J.,  The  New  Democracy  (1899). 
Hare,  T.,  The  Election  of  Representatives  (1859). 
Walpole,  S.,  The  Electorate  and  the  Legislature  (1881). 
Mill,  J.  S.,  The  Subjection  of  Women  (1869). 
Mill,  J.  S.,  Representative  Government  (1875). 


CHAPTER  V 

FEDERAL   GOVERNMENT 

1.  Importance  of  the  Federal  Principle ;  its  Historical  Development. 
—  2.  The  Different  Kinds  of  Federations.  —  3.  Sovereignty  in  a 
Federal  State.  —  4.  Utility  of  the  Federal  Principle  in  effecting  a 
Compromise.  —  5.  Distribution  of  Power  in  Federal  States.  —  6.  Con- 
clusions. 

1.  Importance  of  the  Federal  Principle ;  its 
Historical  Development.  The  subject  of  federal 
government  is  so  important  that  it  may  well  merit  a 
separate  chapter.  The  origin  and  growth  of  federation 
and  the  purpose  it  has  served  in  the  evolution  of  the 
past  are  among  the  most  interesting  topics  of  historical 
study.  Of  the  political  problems  of  our  own  time 
none  are  of  more  vital  bearing  than  the  relation  of  the 
local  and  central  powers  in  a  federal  system.  In  the 
development  of  modern  states  the  principle  of  federa- 
tion has  played  a  prominent  part.  It  has  supplied  the 
requisite  cohesive  power  to  bind  together  the  common- 
wealths that  compose  the  United  States,  and  the  im- 
equal  monarchies  and  free  cities  that  are  joined  into 
the  German  Empire.  Mexico,  Brazil,  and  Switzerland 
are  federal  republics.  The  British  Empire  is,  as  a 
whole,  a  unitary  state,  but  its  two  most  important  de- 
pendencies, the  Dominion  of  Canada  and  the  Common- 
wealth of  Australia,  are,  when  considered  separately, 
federal  systems  closely  resembling  that  of  the  United 
States.  As  far  as  our  present  political  vision  reaches, 
it  seems  as  if  any  attempt  to  create  a  universal  state 


234     THE  STRUCTURE  OF  THE  GOVERNMENT 

must  proceed  along  the  lines  of  federation.  It  may 
perhaps  be  reasonably  thought  that  the  experience 
now  being  gained  in  the  construction  of  composite 
governments  on  a  federal  plan  is  supplying  to  civilized 
mankind  the  requisite  training  for  the  making  of  the 
world  state  of  future  ages. 

It  is  impossible  to  overestimate  the  important  part 
that  has  been  played  by  federation  in  the  history  of 
political  growth.  Speaking  broadly,  one  of  the  chief 
features  in  the  evolution  of  civilized  government  has 
been  the  extension  of  the  area  covered  by  a  single 
political  unit  or  state.  This  extension  has  not  of  course 
proceeded  always  in  a  continuous  chronological  course. 
Modern  Switzerland  is  but  a  diminutive  state  when 
compared  with  the  Roman  Empire.  Yet  it  is  true  in 
the  main  that  one  of  the  most  notable  and  most  essen- 
tial factors  of  political  progress  has  been  the  increasing 
size  of  the  territory  brought  into  a  single  state.  ^  To 
accomplish  this,  two  great  historical  forces  have  been  at 
work.  Of  these  one  is  the  principle  of  conquest,  ab- 
sorption, and  expansion.  The  growth  of  the  French 
monarchy  and  the  spread  of  British  dominion  illustrate 
this.  The  other  has  been  the  principle  of  deliberate 
federal  union,  whereby  a  basis  of  compromise  is  af- 
forded permitting  the  political  junction  of  previous 
states  which  are  too  closely  connected  by  situation, 
language,  and  customs  to  remain  apart,  but  which  are 
too  unlike  in  area,  local  customs,  etc.,  to  permit  of  com- 
plete amalgamation.  Of  these  two  methods  the  one  is 
the  path  of  peace,  the  other  is  the  path  of  war.  No 
lasting  union  of  the  great  states  of  the  world  can  now 

^  See  also  part  i,  chap  iii,  §  5,  above. 


FEDERAL  GOVERNMENT  235 

be  expected  from  the  process  of  conquest.  If  united  at 
all  it  must  be  only  by  means  of  a  union  which  will  de- 
stroy neither  national  pride  nor  national  autonomy. 

In  its  broadest  sense  the  term  federation  indicates 
any  form  of  union  entered  into  by  two  or  more  inde- 
pendent states.  Numerous  historical  examples  at  once 
suggest  themselves.  At  the  very  beginning  of  political 
history  we  have  the  famous  Achaean  league.  This  was 
originally  a  defensive  alliance  of  twelve  cities  of  the 
Peloponnesus,  but  in  its  later  shape  as  revised  in  the 
third  and  second  centuries  (b.  C.  281-146),  this  "  after- 
growth of  Hellenic  freedom  "  assumed  a  more  elaborate 
character.  It  included  Corinth,  Megara,  and  many 
other  important  city  states  of  southern  Greece.  Each 
city  retained  the  control  of  its  own  internal  regulation, 
but  surrendered  into  the  hands  of  the  league  the  con- 
trol of  foreign  relations  and  war.  "There  was,"  says 
Professor  Freeman,^  "an  Achaean  nation  with  a  national 
assembly  ...  no  single  city  could  of  its  own  author- 
ity make  peace  or  war."  Had  it  not  been  for  the  rise 
of  the  world  power  of  the  Roman  Empire,  such  a  league 
might  have  supplied  a  means  of  converting  the  Greek 
city  state  into  a  territorial  national  state.  In  later  his- 
tory the  short-lived  combinations  of  Italian  cities  in 
the  thirteenth  and  fourteenth  centuries  may  perhaps 
be  spoken  of  as  federations.  A  more  conspicuous  ex- 
ample is  seen  in  the  growth  of  modern  Switzerland. 
*Here  the  forest  districts  of  Uri,  Schwyz,  and  Unter- 
walden,  still  nominally  subject  to  the  emperor,  banded 
themselves  together  for  protection  in  1291.  The  league 
thus  formed  grew  in  extent  and  power.  Other  districts 
^  Freeman,  Federal  Government. 


236     THE  STRUCTURE  OF  THE  GOVERNMENT 

and  tlie  free  cities  of  Bern  and  Ziirich  were  joined  to 
it.  The  defeat  of  Austria  in  the  end  of  the  fourteenth 
century  gave  it  a  practical  independence,  which  was 
finally  confirmed  by  the  treaty  of  Westphalia  (1648). 
In  the  confederation  thus  formed  each  member  retained 
its  separate  independence,  mutual  protection  being  the 
only  purpose  of  the  union.  Though  for  a  time  amalga- 
mated by  the  interference  of  the  French  Revolutionists 
into  a  republic,  "  one  and  indivisible,"  it  was  not  until 
the  changes  effected  by  the  constitutions  of  the  nine- 
teenth century  (1848  and  1874)  that  Switzerland  lost 
the  appearance  of  a  defensive  league  of  separate  states.^ 
A  similar  league  was  that  existing  between  the  in- 
dependent states  of  North  America  under  the  Arti- 
cles of  Confederation  (1781-1789).  Here  each  state 
was  a  separate  body  politic.  The  only  form  of  com- 
mon control  was  exercised  through  the  Congress,  a 
body  of  delegates  which  had  no  power  to  compel  the 
states  to  its  will,  and  no  power  to  command  or  to  tax 
the  individual  citizens  of  the  thirteen  states.  The 
federal  Constitution,  made  in  1787  and  put  in  force 
in  1789,  established  in  the  place  of  this  a  single 
federal  state,  in  which  the  central  government  was 
brought  directly  in  contact  with  the  citizens.  The 
course  of  the  nineteenth  century  has  witnessed  several 
federations  of  historical  importance.  Of  these,  the 
Swiss  constitutions  of  1848  and  1874,  the  federation 
of  the  provinces  of  Canada  into  the  Dominion  (1867), 
the  creation  of  the  North  German  Confederation  (1867) 
and  the  German  Empire  (1871),  together  with  the 
recent  federation  of  the  commonwealtli  of  Australia 
^  Sidgwick,  Development  of  European  Polity,  Lecture  XXIX. 


FEDERAL  GOVERNMENT  237 

(1900),  are  the  most  salient  examples.  Other  countries, 
too,  such  as  Mexico  and  Brazil,  have  adopted  the  fed- 
eral system  of  government,  not  as  a  means  of  increas- 
ing their  area,  but  as  a  method  of  harmonizing  local 
and  national  interests. 

2.  The  Different  Kinds  of  Federations.  "When 
we  consider  the  various  forms  of  union  by  which  sep- 
arate states  may  be  joined  together,  it  is  clear  that  they 
present  a  graded  series  of  increasing  closeness.  At  one 
end  of  the  scale  is  the  offensive  and  defensive  alliance 
entered  into  by  sovereign  states.  Of  this  nature  was 
the  famous  Family  Compact  of  the  eighteenth  century, 
between  the  Bourbon  monarchies  of  France  and  Spain. 
Such  a  union  is  extremely  illusory  in  its  nature,  as,  in 
the  absence  of  any  joint  organ  of  government,  it  has 
no  "  sanction "  or  compelling  force  behind  it.  More 
advanced  than  this  are  confederate  types  such  as  the 
Achaean  League,  the  German  Confederation  of  1815, 
or  the  Southern  Confederacy.  In  this  each  partici- 
pant state  retains,  in  name  at  any  rate,  its  sovereign 
character.  It  may  happen  that  in  such  a  union  of 
states  the  formal  act  of  union  declares  itself  perpetual 
and  at  the  same  time  declares  that  each  state  retains 
its  sovereignty.  This  is  quite  inconsistent,  for  it  implies 
that  each  state  is  free  to  leave  the  union,  and  at  the 
same  time  bound  to  remain  in  it.  Such,  however,  is 
the  case  with  the  American  Articles  of  Confederation 
(in  force  from  1781  till  1789)  and  the  constitution  of 
the  Southern  Confederacy.  Beyond  this  type  of  union 
lies  the  federation  par  excellence,  —  the  federal  state, ^ 

^  Professor  Burgess  claims  that  the  term  "  federal  state"  is  not  ad- 
missible, on  the  ground  that  a  state  is  a  unity.   But  while  admitting  that 


238     THE  STRUCTURE  OF  THE  GOVERNMENT 

a  new  unit  composed  out  of  previously  sovereign  states, 
now  united  to  form  a  new  sovereignty,  but  each  retain- 
ing its  own  political  sphere  independent  of  the  legal 
power  of  the  central  government.  Such  is  the  nature  of 
the  present  federal  union  of  the  United  States.  Beyond 
this  again  might  be  distinguished  what  could  be  called 
an  amalgamation,  or  complete  fusion  by  agreement.  It 
differs  from  the  expansion  of  a  single  state  by  conquest 
of  territory,  in  that  the  participant  members  enter  into 
the  amalgamation  or  amalgamated  state  of  their  own 
free  will.  The  best  examples  are  found  in  the  compo- 
sition of  the  United  Kingdom  by  the  act  of  union  of 
England  and  Scotland  in  1707,  and  of  Great  Britain 
with  Ireland  in  1800.  These  unions  were  effected  by 
similar  statutes  passed  by  the  separate  parliaments  of 
the  countries  concerned.  The  unions  declared  them- 
selves to  be  made  on  certain  stated  terms  and  condi- 
tions. But  the  process  differed  from  federation  in  that 
in  each  case  the  parliaments  which  made  the  unions 
then  went  out  of  existence  in  favor  of  a  new  parlia- 
ment which  was  legally  sovereign,  and  not  bound  by 
the  conditions  of  union.  That  this  is  more  than  a 
theoretical  view  of  the  case  is  seen  in  the  fact  that 
the  British  Parliament  in  1869  abolished  the  estab- 
lished (Episcopal)  church  in  Ireland,  whose  main- 
tenance was  one  of  the  terms  of  the  union  of  1800. 
A  similar  case  of  amalgamation  is  seen  in  the  "  fusion  " 
of  the  separate  Italian  states  into  the  kingdom  of  Italy 
(1859-GO) .  The  product  of  such  a  process  is  a  unitary 
and  not  a  federal  state. 

it  is  illogical  to  speak  of  a  confederate  state,  it  seems  reasonable  to  use 
"  federal  state  "  to  mean  a  state  of  which  the  organization  is  federal. 


FEDERAL  GOVERNMENT  239 

The  different  kinds  o£  united  governments  thus  indi- 
cated have  afforded  ground  for  elaborate  classification 
of  the  various  species  of  confederacies  and  federal 
states.  This  has  particularly  interested  the  modern 
German  writers  on  public  law,  some  of  whom  distin- 
guish a  great  many  subdivisions.  Such  classifications 
have  been  undertaken  by  Laband/ Jellinek,^  and  others. 
Jellinek  distinguishes,  in  the  first  place,  virtual  unions, 
such  as  Canada  and  Australia  (legally  part  of  the  uni- 
tary British  state)  and  legal  unions.  The  latter  he  sub- 
divides into  (1)  jjrotectorates,  etc.,  (2)  unions  of  a  supe- 
rior and  inferior  state  (Staatenstaat),seen  in  the  case  of 
Turkey  and  Egypt,  (3)  monarchial  unions,  in  which  two 
independent  states  are  joined  under  a  common  sove- 
reign, this  again  being  subdivided  into  real  and  per- 
sonal, according  to  whether  the  union  is  organic  and 
deliberate  (Sweden  and  Norway,  before  1905)  or  acci- 
dental (England  formerly  with  Hanover),  (4)  the  con- 
federacy (Staatenbund),  and  (5)  the  federal  state  (Bun- 
desstaat).  Other  classifications  are  still  more  minute. 
Of  all  these  fluctuating  subdivisions  American  and 
English  writers  are  generally  inclined  to  throw  aside 
everything  except  the  distinction  between  a  confeder- 
acy and  a  federal  state.  This  is  a  vital  point  in  public 
law  and  requires  some  explanation.  A  confederacy  is 
not  a  single  state.  It  is  a  collection  of  independent 
sovereign  bodies  united  on  stated  terms  for  certain 
purposes.  Each  of  them  is,  legally,  free  to  withdraw 
from  the  confederacy  when  it  pleases.  A  confederacy 
cannot  therefore  be  permanent  and  indissolvable,  for  if 

^  Staatsrecht  des  Deutschen  Rei^hes. 
2  Das  Eecht  des  Modernen  Staates. 


240     THE  STRUCTURE  OF  THE  GOVERNMENT 

it  were  so  then  the  sovereignty  of  the  component  states 
would  disappear.  A  federal  state  is  a  single  state.  Its 
subordinate  parts  may  have  been,  though  not  of  neces- 
sity,* sovereign  states  previous  to  the  union ;  they  can- 
not be  so  after  the  formation  of  the  federation.  Such  a 
union  becomes,  legally,  indissolvable  so  far  as  the  ac- 
tion of  the  separate  state  govei-nments,  or  of  the  central 
government,  is  concerned.  It  could  only  be  dissolved 
by  the  constitutional  amending  process,  where  such 
exists.  The  interpretation  put  on  the  Constitution  of 
the  United  States  by  the  seceding  states  of  the  South 
would  have  made  it  a  confederacy.  The  interpretation 
put  upon  it  in  the  North  made  it  a  federal  state. 

3.  Sovereignty  in  a  Federal  State.  This  leads 
at  once  to  the  much-disputed  question  of  the  sove- 
reignty in  a  federal  state.  Around  this  centred  the 
great  secession  issue  between  the  Northern  and  South- 
ern states,  for  the  retention  by  a  component  state  of  its 
sovereign  power  carries  with  it  of  course  the  right  to 
withdraw  from  a  federation  of  which  it  is  a  part.  Let 
us  consider  the  question  first  of  all  apart  from  the 
particular  case  of  the  United  States.  If  what  has  been 
said  above  is  correct,  it  follows,  by  definition,  that  the 
creation  of  a  federal  state  annihilates  the  sovereignty  of 
the  component  states,  —  not  limits  it  or  divides  it,  but 
annihilates  it.  For  sovereignty  either  is  or  is  not.  But 
in  the  new  state  the  sovereignty  does  not  lie  in  the 
central  government ;  it  lies  in  the  body,  wherever  and 
whatever  it  may  be,  which  has  power  to  amend  the 

^  Compare  the  case  of  the  republic  of  Brazil ;  the  constitution  of 
1891  puts  the  provinces  on  a  federal  basis,  but  they  were  not  previously 
independent  states. 


FEDERAL  GOVERNMENT  241 

constitution.  Legally  speaking,  this  sovereign  body 
can  entirely  abolish  the  federation  and  restore  each 
member  of  it  to  its  original  independence.  This  is  not 
the  same  as  secession,  but  it  carries  with  it  the  conse- 
quence that  such  a  union  is  not  legally  indissolvable. 
In  a  confederacy,  on  the  other  hand,  each  state  is  still 
a  sovereign  state.  There  is  properly  no  confederate 
law.  Any  common  regulations  adopted  by  a  central 
body  of  the  confederacy,  and  binding  on  the  citizens 
of  all  the  states,  are  law  to  any  such  citizen  because 
adopted  as  law  by  his  own  state.  Where  law  exists,  a 
state  exists.  Where  a  state  exists  then  it  has  sovereign 
power.  It  follows  then  that  confederacy  and  secession 
are  one  and  the  same  term  in  point  of  public  law.  In 
actual  fact  secession  resolves  itself  into  a  question  of 
force.  Switzerland  was  an  acknowledged  confederacy 
from  1815  until  1848.  Yet  when  the  seven  Roman 
Catholic  cantons  undertook  to  secede  from  it  (1847) 
they  were  forced  back  into  the  confederation  at  the 
point  of  the  sword. 

In  the  United  States  the  controversy  did  not  turn 
on  the  difference  between  a  confederacy  and  a  federal 
state.  It  turned  on  the  question  whether  the  United 
States  was  the  one  or  the  other.  On  this  point,  as 
Professor  Gold  win  Smith  has  said,  the  "constitution 
proved  itself  a  'Delphic  oracle.'  "  The  language  of  the 
Constitution,  especially  when  read  in  the  light  of  the 
antecedent  history  of  the  confederacy  of  1781-89 
(which  was  virtually  dissolved  by  the  "  secession  "  of 
eleven  of  its  thirteen  states*)  admitted  of  either  inter- 

1  When  the  Constitution  went  into  force  (March  4,  1789)  two  states, 
Rhode  Island  and  North  Carolina,  were  not  as  yet  in  the  Union.   They 


242      THE   STRUCTURE   OF  THE   GOVERNMENT 

pretation.  But  apart  from  the  question  of  secession, 
many  American  writers,  while  admitting  the  federal 
union  to  be  permanent,  have  taken  quite  a  different 
view  of  sovereignty  from  the  one  here  indicated.  This 
is  the  theory  of  dual  or  divided  sovereignty.  In  ac- 
cordance with  this  view  the  sovereign  power  in  a  fed- 
eral union,  such  as  the  American  republic,  is  not 
located  in  any  single  authority  but  is  divided  or  dis- 
tributed between  the  federal  and  the  state  government. 
Such  a  theory  is  of  course  totally  at  variance  with  the 
whole  conception  of  sovereignty  explained  in  an  earlier 
chapter.  It  is  difficult  to  regard  it  as  anything  else 
than  a  confusion  of  sovereignty,  which  is  complete  and 
absolute,  with  constitutional  power,  wliich  may  be  of 
any  degree  of  limitation.  If  the  federal  and  state  gov- 
ernments represent  a  "  division  of  sovereignty,"  then 
the  three  branches  of  the  federal  government  represent 
a  further  subdivision,  and  so  forth.  In  spite,  however, 
of  its  inconsistency,  the  theory  of  dual  sovereignty 
has  found  illustrious  champions.  President  INIadison 
devoutly  believed  in  it.  "  It  is  difficult,"  he  wrote,  "  to 
argue  intelligibly  concerning  the  compound  system  of 
government  in  the  United  States  without  admitting 
the  divisibility  of  sovereignty."  The  American  courts 
of  the  same  period  declared,  "  The  United  States  are 
sovereign  as  to  all  the  powers  of  government  actually 
surrendered.  Each  state  in  the  Union  is  sovereign  as 
to  all  the  powers  reserved."  ^ 

■were  certainly  no  longer  in  the  confederacy,  which  had  ceased  to  exist. 
Yet  the  articles  had  declared  that  "  the  Union  shall  be  perpetual  " 
(art.  13). 

1  For  the  subject  of  sovereignty  under  tlie  xVraerican  constitution, 


FEDERAL  GOVERNMENT  243 

4.  Utility  of  the  Federal  Principle  in  effecting 
a  Compromise.  Keturning  from  the  question  of  the 
location  of  sovereignty  to  the  general  aspect  of  the  fed- 
eral state,  it  may  be  noted  that  the  peculiar  utility  of 
the  federal  jDrinciple  in  political  construction  lies  in 
the  spirit  of  compromise  which  it  embodies.  Every 
small  community  or  state  is  driven  by  the  need  of  pro- 
tection to  seek  for  a  union  with  its  fellows.  But  a  form 
of  association  which  annihilates  its  own  traditions  of 
independent  self-government  naturally  runs  counter  to 
the  sympathies  of  its  citizens.  Still  more  is  this  the 
case  if  the  communities  to  be  united  are  of  unequal 
magnitude.  In  this  case  a  complete  amalgamation  into 
a  unitary  state  would  practically  mean  the  absorption 
of  the  minor  states  into  the  large  ones.  The  position  of 
New  Jersey,  Delaware,  and  Connecticut  at  the  time  of 
the  making  of  the  Constitution  was  of  this  sort.  Still 
more  unequal  was  the  federation  long  contemplated 
among  the  German  states,  and  finally  accomplished  by 
the  formation  of  the  federal  empire  in  1871.  The 
principality  of  Schaumberg-Lippe  has  an  area  of  131 
square  miles,  and  a  population  of  about  40,000  persons ; 
the  kingdom  of  Prussia  has  an  area  of  nearly  135,000 
square  miles  and  a  population  of  35,000,000.  In  all 
such  cases  as  this  the  federal  system  supplies  the  means 
of  creating  a  single  state,  combining  the  whole  powers  of 
its  members  for  international  defense  and  for  matters 
of  general  interest,  without  sacrificing  the  individual 
life  and  political  susceptibilities  of  the  component  parts. 
Even  among  "states"  of  relative  equality,  as  in  the 

the  student  may  consult  Merriam,  History  of  the  Theory  of  Sovereignty 
since  Rousseau,  from  which  the  above  quotations  are  taken. 


244      THE   STRUCTURE   OF  THE   GOVERNMENT 

case  of  tlie  majority  of  the  forty-five  states  of  the  Union, 
the  federal  system  has  the  advantage  of  permitting  the 
legislation  of  each  to  accord  with  differences  of  environ- 
ment  caused  by  climate,  racial  elements,  local  custom, 
and  antecedents.  In  the  United  States,  more  than  any- 
where else  in  the  world,  full  advantage  has  been  taken 
of  the  possibilities  of  the  federal  principle.  Its  history 
is  largely  a  histor}'  of  federations.  In  the  earliest  times 
of  colonial  history  we  have  the  formation  of  Connecti- 
cut by  the  federal  union  of  its  towns,  and  the  establish- 
ment in  1643  of  the  New  England  federation  uniting 
the  northerly  colonies  for  mutual  protection.  The 
quarrel  with  Great  Britain  in  the  eighteenth  century 
brought  the  thirteen  colonies  into  a  union,  which,  after 
passing  through  the  preliminary  stages  of  the  Continen- 
tal Congress  and  the  abortive  confederacy  of  1781,  was 
finally  consolidated  into  the  present  federal  republic. 
The  principle  of  political  growth  and  constitution 
adopted  in  1789  has  governed  the  whole  evolution  of 
the  United  States  during  the  nineteenth  century. 

5.  Distribution  of  Povrer  in  Federal  States. 
So  much,  then,  for  the  historical  and  political  aspect  of 
the  federal  principle.  Let  us  turn  now  to  consider  the 
important  subject  of  the  division  of  power  between 
federal  and  subordinate  authorities.  It  is  not  necessary 
in  this  connection  to  take  account  of  any  of  the  confed- 
eracies or  federal  governments  previous  to  the  forma- 
tion of  the  Constitution  of  the  United  States.  In  these 
only  the  most  elementary  and  necessary  powers  were 
allotted  to  the  central  government.  But  the  federations 
of  1789  and  of  the  nineteenth  century  offer  an  interest- 
ing series  which  may  be  studied  with  a  view  to  discov- 


FEDERAL  GOVERNMENT  245 

ering  tlie  teaching  of  experience  in  regard  to  the  rela- 
tive position  of  central  and  subordinate  authorities. 
"We  may  here  best  begin  by  stating  the  general  princi- 
ples of  apportionment  of  power.  The  prime  historical 
motive  of  federation  has  been  the  need  of  defense.  It 
is  therefore  first  of  all  requisite  that  the  federal  govern- 
ment should  have  control  of  the  military  and  naval 
power.  Closely  connected  to  this  is  the  necessity  that 
in  its  dealings  with  outside  states  the  federation  should 
conduct  itself  as  a  unit.  The  control  of  foreign  rela- 
tions must  therefore  rest  with  the  central  power. 
Since  neither  foreign  relations  nor  war  can  be  con- 
ducted without  financial  support,  it  is  further  necessary 
that  the  federal  government  should  have  some  power 
of  taxation  of  the  individual  citizens.  It  is  not  enough 
that  it  should  be  able  to  requisition  the  component 
commonwealths  for  the  money  it  needs :  this  was  amply 
seen  in  the  collapse  of  the  finances  of  the  old  Confeder- 
ation (1781-89).  To  cover  urgent  and  temporary  needs, 
the  financial  power  must  include  the  power  to  borrow. 
These  three  functions — the  conduct  of  war  and  de- 
fense, the  control  of  foreign  affairs,  and  the  power  to 
raise  money  —  are  the  prime  essentials  without  which 
no  federal  state  can  exist. 

As  a  second  class  of  governmental  duties  may  be 
ranked  all  those  which  are  only  effective  in  so  far  as 
uniformly  and  generally  performed.  Of  this  nature 
are  the  control  of  coinage,  the  regulation  of  patents 
and  copyrights,  and  the  conduct  of  the  postal  service. 
Third  in  the  list  will  stand  a  variety  of  public  affairs 
in  which,  though  uniformity  is  not  absolutely  essential, 
it  is  nevertheless  largely  contributory  to  national  pro- 


246      THE   STRUCTURE   OF  THE   GOVERNMENT 

gress.  In  this  connection  may  be  mentioned  the  control 
of  the  more  extensive  transportation  facilities  (those 
which  constitute  "interstate  commerce"), — raih"oads, 
canals,  telegraphs,  etc.,  —  the  regulation  of  the  banking 
system,  and  the  establishment  of  a  general  tariff.  The 
latter  is  a  somewhat  anomalous  case.  Federal  control 
of  a  tariff  is  apt  to  find  its  place  among  the  powers  of 
the  central  government  from  financial  reasons  sooner 
than  from  economic.  The  tariff  offers  a  convenient 
and  somewhat  surreptitious  form  of  taxation.  Though 
not  theoretically  a  requisite  power  of  the  central  gov- 
ernment, it  is  in  practice  of  great  importance :  tariff 
walls  are  a  serious  impediment  to  the  consolidation 
of  national  life.  To  illustrate  this  one  may  refer  to 
the  tariff  bickerings  of  the  thirteen  states  under  the 
Articles  of  Confederation,  or  to  the  case  of  the  German 
states  united  in  the  confederation  of  1815.  In  this  last 
instance  not  only  was  each  state  a  separate  tariff  area 
from  the  others,  but  the  single  states  were  subdivided, 
—  Prussia  was  a  political  unit,  but  contained  sixty- 
seven  different  tariff  areas.  ^  As  a  fourth  class  may  be 
placed  the  debatable  category  of  subjects  whose  allot- 
ment to  the  federal  or  component  government  is  a  mat- 
ter of  opinion  and  must  depend  on  the  circumstances 
of  the  case.  Here  the  conspicuous  examples  are  seen 
in  the  regulation  of  marriage  and  divorce  and  in  the 
control  of  public  education.  Beyond  this  as  the  fifth 
and  final  class  lie  those  duties  which  certainly  ought 
to  be  left  to  the  constituent  governments  to  perform. 
Here  again  opinion  may  differ,  but  public  works  of 

^  Seo  in    tliis  connection   Seiguobos,  Political   History  of  Europe, 
chap.  xiv. 


FEDERAL  GOVERNMENT  247 

merely  local  scope,  public  charities,  the  regulation  of 
the  liquor  question,  etc.,  are  generally  included. 

With  this  outline  let  us  now  briefly  compare  the 
actual  distribution  of  powers  in  the  chief  federations 
under  our  notice.  We  may  begin  by  quoting  the  legis- 
lative powers  assigned  to  Congress  by  the  Constitution 
of  the  United  States. 

"The  Congress  shall  have  Power  to  lay  and  collect 
Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts 
and  provide  for  the  common  Defence  and  general  Wel- 
fare of  the  United  States  ;  but  all  Duties,  Imposts  and 
Excises  shall  be  uniform  throughout  the  United  States ; 

"To  borrow  money  on  the  credit  of  the  United 
States ; 

"  To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes ; 

"  To  establish  a  uniform  Rule  of  Naturalization, 
and  uniform  Laws  on  the  subject  of  Bankruptcies 
throughout  the  United  States ; 

"  To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  to  fix  the  Standard  of  Weights  and 
Measures ; 

"  To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States ; 

"  To  establish  Post  Oflices  and  post  Roads ; 

"  To  promote  the  Progress  of  Science  and  useful 
Arts  by  securing  for  limited  Times  to  Authors  and  In- 
ventors the  exclusive  Right  to  their  respective  Writ- 
ings and  Discoveries ; 

"  To  constitute  Tribunals  inferior  to  the  Supreme 
Court ; 

"  To  define  and  Punish  Piracies  and  Felonies  com- 


248      THE   STRUCTURE   OF  THE   GOVERNMENT 

mitted  on  the  high  Seas  and  Offences  against  the  Law 
of  Nations  ; 

"  To  declare  War,  grant  Letters  of  Marque  and  Re- 
prisal, and  make  Rules  concerning  Captures  on  Land 
and  Water ; 

"  To  raise  and  support  Armies,  but  no  Appropria- 
tion of  Money  to  that  Use  shall  be  for  a  longer  Term 
than  two  Years ; 

"  To  provide  and  maintain  a  Navy ; 

"  To  make  Rules  for  the  Government  and  Regulation 
of  the  land  and  naval  Forces  ; 

"  To  Provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and  re- 
pel Invasions ; 

"  To  provide  for  organizing,  arming,  and  disciplin- 
ing, the  Militia,  and  for  governing  such  Part  of  them 
as  may  be  employed  in  the  Service  of  the  United 
States,  reserving  to  the  States  respectively,  the  Ap- 
pointment of  the  Officers,  and  the  Authority  of  training 
the  Militia  according  to  the  Discipline  prescribed  by 
Congress ; 

"To  exercise  exclusive  Legislation  in  all  Cases  what- 
soever, over  such  District  (not  exceeding  ten  Miles 
square)  as  may,  by  Cession  of  particular  States,  and 
the  Acceptance  of  Congress,  become  the  Seat  of  the 
Government  of  the  United  States,  and  to  exercise 
like  Authority  over  all  Places  purchased  by  the  Con- 
sent of  the  Legislature  of  the  State  in  which  the 
Same  shall  be,  for  the  Erection  of  Forts,  Magazines, 
Arsenals,  Dock- Yards,  and  other  needful  Buildings ;  — 
And 

"To  make  all  laws  which   shall   be  necessary  and 


FEDERAL  GOVERNMENT  249 

proper  for  carrying  into  Execution  the  foregoing  Pow- 
ers, and  all  other  Powers  vested  by  this  Constitution  in 
the  Government  of  the  United  States,  or  in  any  De- 
partment or  Officer  thereof."  ^ 

It  will  be  seen  at  once  that  apart  from  the  special 
provisions  relating  to  the  Indians  and  the  District  of 
Columbia,  there  are  no  powers  granted  here  that  have 
not  been  given  to  the  central  government  in  all  the  later 
federations.  The  national  government  receives  by  this 
article  but  little  more  than  the  necessary  powers  of 
government.  The  residual  power  of  government  —  the 
authority  to  control  those  things  for  which  no  special 
provision  is  made  — is  elsewhere  explicitly  withheld 
from  it. 

Let  us  place  in  immediate  comparison  with  this  the 
allotment  of  power  between  the  federal  and  provincial 
governments  in  the  Dominion  of  Canada.  The  basis  of 
the  constitution  of  Canada  is  a  statute  of  the  British 
Parliament  named  the  British  North  America  Act  of 
1867.  The  provisions  in  respect  to  the  distribution  of 
power  are  in  the  ninety-first,  ninety -second,  and  ninety- 
third  sections  of  the  act.  They  are  particularly  inter- 
esting in  the  present  connection  because  they  are  based 
on  the  arrangement  made  in  the  Constitution  of  the 
United  States  revised  in  the  light  of  subsequent  polit- 
ical experience.  In  addition  to  the  powers  possessed 
by  Congress,  the  legislative  power  of  the  Dominion 
Parliament  extends  to  the  criminal  law,  marriage  and 
divorce,  interest,  and  the  raising  of  money  by  any 
mode  or  system  of  taxation.  Other  things,  such  as 
banking,  etc.,  are  included  which  are  not  explicitly 
1  Art.  i,  §  8. 


250     THE  STRUCTURE  OF  THE  GOVERNMENT 

granted  to  the  Congress  and  to  which  the  federal  au- 
thority in  the  United  States  only  reaches  by  interpreta- 
tion of  implied  powers.  In  addition  to  this  the  statute 
enacts  that  the  Dominion  Parliament  has  legislative 
power  "  in  relation  to  all  matters  not  coming  within 
the  classes  of  subjects  by  this  act  assigned  exclusively 
to  the  legislatures  of  the  Provinces."  The  amount  of 
federal  power  expressly  granted  contrasts  strongly  with 
the  section  of  the  American  Constitution  quoted  above. 
Even  as  compared  with  the  power  of  Congress  when 
expanded  by  the  doctrine  of  implied  powers,  the  con- 
trol of  the  Dominion  over  such  items  as  the  crimi- 
nal law  represents  a  considerable  increase  of  federal 
authority. 

Closely  following  upon  the  making  of  the  Canadian 
constitution,  we  have  the  constitutions  of  two  impor- 
tant federal  states  still  in  operation.  These  are  the 
constitution  of  the  German  Empire  (1871)  and  that 
of  Switzerland  (1874).  lu  each  of  these  the  scope  of 
the  central  power  is  far  wider  than  in  that  of  the 
United  States.  In  Germany  the  constitution,  together 
with  an  amendment  of  December  20,  1873,  grants  to 
the  federal  government  the  control,  not  only  of  the 
things  within  the  jurisdiction  of  Congress,  but  also  the 
criminal  law,  civil  law  and  judicial  procedure,  banking, 
medical  practice,  railroads  (except  in  Bavaria),  the 
regulation  of  the  press,  of  trades,  insurance  (includ- 
ing workingmen's  insurance  and  pension  laws),  and 
other  matters.^  In  Germany  the  legislative  scope  of 
the  central  government  is  vastly  greater  than  in  Amer- 
ica. Its  action  in  the  administrative  direction  is  less, 
^  Imperial  Constitution,  art.  iv. 


FEDERAL  GOVERNMENT  251 

since  the  principle  of  decentralization  is  here  adopted 
and  the  federal  measures  (tariff,  etc.)  are  carried  out 
by  the  authorities  of  the  constituent  governments.  The 
action  of  the  central  government  is  further  narrow^ed 
in  practice  by  the  use  that  is  made  of  the  principle  of 
concurrent  jurisdiction.  In  many  of  the  matters  men- 
tioned above  the  power  of  the  federal  government  is 
not  exclusive.  Where  the  federal  government  has  not 
seen  fit  to  act,  the  states  are  free  to  exercise  a  legisla- 
tive power.  This  api^lies  for  example  to  the  control  of 
railroads,  medical  practice,  the  criminal  and  civil  law, 
etc.  The  federal  jurisdiction  is  only  exclusive  where 
from  the  nature  of  the  case  it  must  be  so  (such  as  rais- 
ing of  money  on  the  credit  of  the  empire)  or  where  it 
is  expressly  stated  (for  example,  the  taxation  of  im- 
ports).^ To  prevent  conflict  of  authority  it  is  provided 
that  a  federal  law  always  overrides  a  statute  of  one  of 
the  constituent  parts  of  the  empire.  This  same  princi- 
ple of  concurrent  jurisdiction  obtains  of  course  in  the 
United  States,  but  to  a  much  less  extent ;  most  of  the 
powers  granted  to  Congress  are  forbidden  to  the  com- 
monwealths, but  in  some  matters,  such  as  bankruptcy 
laws,  they  may  act  in  the  absence  of  federal  legislation.^ 
The  present  constitution  of  Switzerland  (1874),  to- 
gether with  the  amendments  since  added,  shows  a  wide 
range  of  federal  power.  "  The  legislative  authority  of 
the  national  government,"  says  Professor  A.  Lawrence 
Lowell,^  "  is  much  more  extensive  in  Switzerland  than 

1  Imperial  Constitution,  art.  xxxv. 

2  This  subject  is  well  treated  by  Burgess,  Political  Science  and  Con- 
stitutional Law,  vol.  ii,  chap.  vii. 

^  Governments  and  Parties  in  Continental  Europe,  vol.  ii,  chap.  xi. 


252      THE  STRUCTURE   OF  THE  GOVERNMENT 

in  this  country,  for  in  addition  to  the  powers  conferred 
upon  Congress  it  includes  such  subjects  as  the  regula- 
tion of  religious  bodies  and  the  exclusion  of  monastic 
orders,  the  manufacture  and  sale  of  alcoholic  liquors, 
the  prevention  of  epidemics  and  epizootics,  the  game 
laws,  the  construction  and  operation  of  all  railroads, 
the  regulation  of  all  labor  in  factories,  the  compulsory- 
insurance  of  workmen,  the  collection  of  debts,  and  the 
whole  range  of  commercial  law."  To  this  may  be 
added  the  fact  that  the  federal  government  has  the 
power  (under  the  constitution)  to  compel  the  can- 
tons to  establish  compulsory  secular  education,  gratu- 
itous in  the  primary  schools.  The  Swiss  government 
has,  however,  no  power  to  levy  direct  taxes. 

As  a  concluding  instance  let  us  notice  the  position 
of  the  central  power  in  the  recent  federation  of  the 
Australian  colonies.  The  Commonwealth  of  Australia, 
considered  apart  from  its  connection  with  the  British 
Empire,  is  a  federal  unit  made  of  six  separate  "  states."  ^ 
Its  constitution,  like  that  of  Canada,  is  found  in  a  statute 
of  the  British  Parliament  enacted  in  1900,  under  the 
title  of  the  Commonwealth  of  Australia  Constitution 
Act.  The  legislative  power  of  the  federal  parliament 
is  laid  down  in  great  detail."  It  includes  all  the  essen- 
tial and  virtually  essential  powers  already  treated,  such 

^  Rightly  or  wrongly  the  Australians  have  adopted  the  term  states  as 
the  official  designation  of  tlie  component  parts  of  their  federation. 
Since  the  whole  body  is  officially  called  the  Commonwealth,  we  find 
the  terminology  used  by  Professor  Burgess  and  other  American  writers 
exactly  reversed. 

^  Constitution  Act,  part  v,  §  51  and  §  52.  A  good  commentary  is 
given  by  Professor  Harrison  Moore,  The  Commonwealth  of  Australia, 
chap.  V. 


FEDERAL  GOVERNMENT  253 

as  defense,  taxation,  postal  service,  tariffs,  interstate 
commerce,  etc.  In  addition  to  this  the  federal  author- 
ity is  explicitly  declared  to  extend  to  bounties  on 
production  or  exjDort,  insurance  (other  than  state  in- 
surance), marriage  and  divorce,  invalid  and  old-age 
pensions,  foreign  corj^orations,  acquisition  of  state  rail- 
ways (with  consent  of  the  state),  railway  construction 
(with  similar  consent),  railroad  control  even  without 
consent  if  needed  for  military  purposes,  conciliation  of 
industrial  disputes,  if  not  confined  to  a  single  state, 
immigration,  influx  of  criminals,  and  other  minor  mat- 
ters. It  is  interesting  to  notice  the  use  that  is  made  of 
the  principle  of  concurrent  jurisdiction.  The  German 
constitution  had,  as  we  have  seen,  deliberately  adopted 
this  plan.  The  British  North  America  Act,  on  the 
other  hand,  tries  to  indicate  the  powers  of  Dominion 
and  provincial  governments  as  exclusive  of  one  another; 
in  practice  this  has  led  to  confusion.  In  Australia  only 
a  few  of  the  powers  are  expressly  declared  exclu- 
sive (§  52).  In  the  majority  of  instances  the  state 
government  may  act  where  the  federal  government  has 
not  done  so.  But,  as  in  the  German  Empire,  "  When 
the  law  of  a  state  is  inconsiste:it  with  a  law  of  the 
commonwealth  the  latter  shall  prevail."  This  last 
provision  must  not  be  misunderstood.  The  law  of  the 
commonwealth  in  question  must  not  transcend  the  con- 
stitutional power  of  the  federal  parliament,  otherwise 
its  application  can  be  declared  invalid  by  the  courts, 
just  as  in  America. 

6.  Conclusions.  From  the  foregoing  comparison  of 
the  chief  federations  of  the  nineteenth  century,  impor- 
tant conclusions  are  to  be  drawn.    There  is  manifest 


254     THE   STRUCTURE   OF   THE   GOVERNMENT 

throughout  the  tendency  to  entrust  the  central  or  na- 
tional government  with  a  wider  and  wider  sphere  of 
authority.  For  this  several  reasons  are  to  be  assigned. 
In  the  first  place  it  represents  a  process  that  is  alto- 
gether natural,  and  which  may  rightly  be  spoken  of 
as  organic.  The  units  of  the  federation  once  brought 
into  contact  begin  to  grow  together,  and  to  be  knit 
into  a  more  and  more  united  body.  The  original  jeal- 
ousy and  particularism  of  the  separate  parts  are  grad- 
ually merged  into  the  wider  outlook  that  accompanies 
a  larger  national  life ;  the  central  government  of  the 
federation  becomes  a  part  and  parcel  of  each  individ- 
ual citizen,  and  enlists  in  its  support  a  broader  patri- 
otism than  narrow  adherence  to  the  interests  of  his 
section  of  the  community.  Where  the  sense  of  natu- 
ral greatness  is  involved  constitutional  limitations  can 
be  overridden  with  public  approval ;  the  addition  of 
Louisiana  to  the  territory  of  the  United  States  at 
once  suggests  itself  in  illustration.  An  equally  potent 
factor  leading  to  the  extension  of  federal  power  is 
found  in  the  material  conditions  of  modern  life.  Rapid 
transportation,  the  telegraph,  and  the  evolution  of 
production  and  commerce  on  a  scale  undreamed  of 
at  the  making  of  the  Constitution  have  broken  down 
the  economic  barriers  that  once  existed.  Communi- 
ties that  were  originally  absolutely  distinct  in  their 
economic  and  social  life  have  undergone  a  complete 
industrial  amaljramation.  Each  administers  to  the 
wants  of  the  other,  and  each  in  turn  receives  a  benefit. 
The  wheatfields  of  the  Dakotas  and  the  factories  of 
Massachusetts  are  complementary  to  one  another. 
Where  industry  and  commerce  are  thus  fused  into  a 


FEDERAL  GOVERNMENT  255 

single  economic  life,  it  is  impossible  to  separate  the 
control  of  them  into  distinct  territorial  districts.  It 
becomes  an  absolute  necessity  that  the  powers  of  the 
federal  government  must  be  either  so  expressed  or  so 
interpreted  as  to  cover  the  whole  range  of  economic 
life  that  has  passed  the  bounds  of  the  component 
"states"  and  become  national.  It  is  for  this  reason 
that  the  process  of  addition  to  federal  power  may  be 
expected  to  continue  in  the  future.  Before  the  intrud- 
ing forces  of  industrial  civilization  "  state  lines  "  are 
becoming  more  and  more  meaningless.  Moreover,  the 
true  path  to  be  followed  has  been  already  indicated  by 
the  German  and  Australian  constitutions.  By  adopting 
the  plan  of  concurrent  jurisdiction  and  leaving  it  to  the 
central  government  to  occupy  the  field  in  proportion 
as  the  progress  of  national  evolution  demands  it,  a  way 
is  open  for  continued  expansion  without  suffering  the 
pangs  of  amendment,  or  relying  upon  the  strained  in- 
terpretation of  the  law. 

We  have  still  left  out  of  consideration  the  question 
of  how, the  American  Constitution,  made  at  a  time  when 
local  jealousies  prescribed  the  most  grudging  admission 
of  federal  power,  is  able  to  adapt  itself  to  the  changed 
situation  of  to-day.  That  this  is  not  done  by  legal  amend- 
ment has  been  already  shown  :  the  amending  machinery 
of  the  Constitution  is  so  rigid  and  immovable  that  it  is 
valueless  for  the  kind  of  adaptation  here  demanded. 
But  instead  of  technical  amendment  a  process  of  virtual 
amendment  has  been  effected  continuously  through  the 
nineteenth  century  by  the  interpretation  given  to  the 
Constitution  by  the  courts.  The  Constitution  is  fortu- 
nately an  elastic  document,  capable  of  meaning  much  or 


256      THE   STRUCTURE   OF  THE  GOVERNMENT 

little  at  the  will  of  its  interpreter.  The  courts  therefore 
have  fallen  back  on  the  doctrine  of  "  implied  powers, " 
and  have  stretched  the  Constitution  to  cover  things 
never  contemplated  in  its  literal  meaning.  "  A  power 
vested,"  said  Chief -Justice  Marshall,  "  carries  with  it 
all  those  incidental  powers  which  are  necessary  to  its 
complete  and  efficient  execution."  The  purchase  of 
Louisiana,  the  Embargo  Act  of  1807,  grants  of  land  for 
railroads  and  canals,  the  annexation  of  Texas,  grants 
of  land  for  agricultural  colleges,  etc.,  are  not  things 
for  which  direct  authority  can  be  found  in  the  enu- 
merated powers  of  the  federal  government.^  It  is  by 
interpretation  only  that  Congress  has  the  power  to 
issue  paper  money,  to  make  anything  it  wills  legal  ten- 
der, to  charter  and  regulate  national  banks,  to  claim  a 
monopoly  of  the  postal  service.  It  is  probable  that,  if 
future  needs  demand  it,  the  Constitution  can  be  held  to 
permit  the  national  government  to  build,  buy,  and  own 
railroads,  and  to  monopolize  the  telegraph  service. 
That  this  device  of  latitndinarian  interpretation  has 
filled  a  most  useful  historical  purpose  is  beyond  a 
doubt.  It  is  an  excellent  example  of  the  political 
genius  inherent  in  the  Anglo-Saxon  temperament, that 
the  difficulty  created  by  the  error  in  making  amendment 
so  rigid  should  be  surmounted  by  so  simple  and  natural 
a  remedy.  The  error  remains  an  error  nevertheless. 
The  Swiss  or  Australian  system,  whereby  recurring 
amendment  is  part  of  the  life  of  the  constitution,  is 
greatly  to  be  preferi'ed. 

^  See  Andrews,  Manual  of  the  Constitution,  p.  135. 


FEDERAL  GOVERNMENT  257 

READINGS  SUGGESTED 
Sidgwick,  H.,  Development  of  European  Polity  (1903),  Lectures 

IX  and  XXIX. 
The  Federalist,  Essays  XV,  XVI,  XVII. 
Fiske,  J.,  American  Political  Ideas  (1902),  Lecture  II. 

FURTHER  AUTHORITIES 
Story,  J.,  Commentaries  on  the  Constitution  of  the  United  States 

(5th  edition,  1891). 
Curtis,  G.  T.,  Constitutional  History  of  the  United  States,  vol.  i 

(1896). 
Vincent,  J.  M.,  Government  in  Switzerland  (1900). 
Moore,  H.,  The  Commonwealth  of  Australia  (1902). 
Bouriuot,   Sir   John,   Manual  of   the   Constitutional  History  of 

Canada  (1888). 
Freeman,  E.  A.,  History  of  Federal  Government  (1863). 
Dareste,  F.  R.,  Les  Constitutions  Modernes  (1891). 
Laband,  Staatsrecht  des  Deutschen  Reiches  (4th  edition,  1901). 
Constitution  of  the  Confederate  States  of  America  (see  Curtis, 

Constitutional  History,  vol.  ii,  appendix). 
Stephens,  A.  H.,  A  Constitutional  View  of  the  War  between  the 

States  (1867-70). 
Merriam,  C.  E.,  History  of  the  Theory  of  Sovereignty  since  Rous- 
seau (1900). 
Doyle,  J.  A.,  English  in  America  (1887). 
Andrews,  E.  W.,  Manual  of  the  Constitution  of  the  United  States 

(1887). 


CHAPTER  VI 

COLONIAL  GOVERNMENT 

1.  The  Acquisition  of  Dependencies.  —  2.  Colonies  of  the  Ancient 
World.  —  3.  Colonial  Expansion  after  the  Discovery  of  the  Sea 
Route  to  the  East  Indies  and  the  Discovery  of  America ;  Spanish 
Colonial  System.  —  4.  Colonial  Policy  of  England  and  France  in  the 
Seventeenth  and  Eighteenth  Centuries.  —  5.  The  American  Revolu- 
tion. —  6.  Alteration  of  British  Colonial  Policy  in  the  Nineteenth 
Century;  Establishment  of  Self-Government.  —  7.  Present  British 
System  of  Colonial  Administration.  —  8.  Imperial  Federation.  — 
9.  Recent  Colonial  Expansion  of  European  States.  — 10.  The  De- 
pendencies of  the  United  States. 

1.  The  Acquisition  of  Dependencies.  Taking 
the  word  colony  in  its  widest  sense  to  inckide  all  kinds 
of  dependencies,  we  are  met  by  the  fact  that  the  colo- 
nies of  the  world  occupy  two  fifths  of  the  land  surface 
of  the  globe,  and  contain  a  population  of  half  a  bil- 
lion people.  Great  Britain  has  at  least  350,000,000 
colonial  subjects,  France  56,000,000,  the  Netherlands 
35,000,000,  Belgium  30,000,000,  and  Germany  about 
15,000,000.^  The  political  status  of  the  communities 
thus  controlled  presents  the  greatest  diversity.  In  the 
strict  theory  of  law  each  of  them  is  under  the  abso- 
lute dominion  of  the  sovereign  state  to  which  it  "  be- 
longs." In  practice  they  vary,  from  the  virtual  inde- 
pendence enjoyed  by  Canada  and  Australia  to  the  total 
dependence   of    Gibraltar   or    Madagascar.    The   vast 

^  Statistics  taken  from  the  Bureau  of  Statistics  publication,  Colonial 
Administration  (1901). 


COLONIAL  GOVERNMENT  259 

extent  and  tlie  great  natural  resources  o£  the  modern 
colonial  area  indicate  its  importance  in  the  future  his- 
tory of  the  world.  The  realization  of  this  by  the  great 
powers  has  led,  during  the  past  twenty-five  years,  to  a 
renewed  colonial  expansion,  in  which  practically  all 
the  "  unclaimed  "  territory  of  the  world  has  been  par- 
titioned among  the  leading  states.  The  subject  of  colo- 
nial administration,  both  political  and  economic,  has 
taken  on,  in  consequence,  an  increased  interest,  and 
attention  is  more  and  more  directed  to  the  study  of  the 
systematic  management  of  dependencies.  The  recent 
expansion  of  the  United  States  resulting  from  the  war 
with  Spain  has  rendered  this  portion  of  the  study  of 
government  one  of  especial  consequence  to  Americans. 
The  present  chapter,  therefore,  will  be  directed  towards 
an  inquiry  into  the  origin  and  evolution  of  colonial  gov- 
ernment, the  different  systems  of  administration  now 
employed,  and  the  question  of  the  political  future  of  col- 
onies. Throughout  the  chapter  it  will  be  proper  to  de- 
vote most  attention  to  the  colonies  of  the  United  King- 
dom. Great  Britain  has  been,  par  excellence,  and  still 
is,  the  colonizing  country ;  and  it  is  by  the  British  gov- 
ernment, in  a  somewhat  groping  and  half -conscious  way, 
that  what  may  be  called  the  modern  system  of  colonial 
administration  has  been  worked  out.  The  new  depen- 
dencies of  the  United  States  will  be  examined  in  con- 
clusion in  order  that  their  present  government  may  be 
discussed  in  the  light  of  British  experience  in  the  past. 
A  sovereign  state  comes  to  possess  dependencies  in 
various  ways.  The  simplest  is  that  of  conquest,  by 
which  the  vanquished  community  is  subjected  to  the 
rule  of  its  victors.    Such  was  the  case  with  the  ex- 


2G0      THE   STRUCTURE  OF   THE   GOVERNMENT 

pansion  of  Rome,  whose  "  provinces "  were  countries 
conquered  by  the  Roman  arms.  The  Spanish  colonies 
of  Mexico  and  Peru,  and  the  British  dominions  in 
India,  were  the  fruits  of  conquest.  Closely  akin  to  this 
is  the  acquisition  of  a  colony  by  cession.  A  country 
possessing  a  colony  may  be  compelled  by  defeat  in  war 
to  cede  the  colony  as  the  price  of  peace,  or  induced 
from  commercial  reasons  to  sell  it.  The  numerous 
treaties  of  the  eighteenth  century,  whereby  France  and 
England  handed  their  colonial  possessions  back  and 
forward,  were  of  this  sort.  The  cession  of  Canada  by 
France  (1763),  and  of  the  Philippines  by  Spain  (1898), 
are  instances  of  colonial  acquisition  by  war,  while  the 
purchase  of  Louisiana  (1803)  illustrates  the  purely 
financial  process  of  acquisition.  In  addition  to  these 
two  modes  of  colonial  aggrandizement  there  remains 
what  may  be  called,  2^^^'''  €.xcellence.,  the  colonizing 
process,  namely,  that  of  occupation  and  settlement.  In 
this  case  the  claim  to  the  colony  rests,  if  not  on  actual 
discovery  of  the  land  (Newfoundland,  Australia,  etc.), 
at  any  rate  on  priority  of  actual  occupation.  Where 
a  native  population  is  found  in  fixed  agricultural  settle- 
ments, the  assumption  of  control  approximates  to  con- 
quest. But  where  the  native  population  is  sparse  and 
migratory,  merely  wandering  over  the  land  in  nomadic 
fashion,  living  on  the  bounty  of  nature  and  the  fruits 
of  the  chase,  their  presence  ought  not  to  invalidate  the 
claim  of  immigi-ants  proposing  to  make  a  permanent 
and  fixed  settlement.  Much  sentiment  has  been  wasted 
over  the  supposed  claim  of  the  Indians  to  the  continent 
of  North  America.  When  it  is  recalled  that  the  whole 
Indian  population,  from  Newfoundland  to  Florida,  and 


COLONIAL   GOVERNMENT  261 

from  the  Mississippi  to  the  sea,  was  about  as  numer- 
ous as  the  inhabitants  of  a  large  American  city  (prob- 
ably about  200,000),  and  that  its  settlements  were 
only  in  a  few  places  fixed  and  agricultural,  its  "  claim  " 
to  ownership  of  the  whole  country  becomes  somewhat 
absurd.  One  may  well  ask  how  far  such  reasoning  should 
be  carried.  Did  the  few  starveling  bushmen  of  the  des- 
ert and  forest  of  Australia  own  the  whole  continent? 
Without  accepting  the  brutal  code  of  the  right  of  the 
strongest,  one  may  in  all  reasonableness  recognize  the 
right  of  civilized  nations  to  the  acquisition  of  territory 
which  is  only  "squatted  upon"  by  wandering  savages. 
2.  Colonies  of  the  Ancient  World.  Of  the  colo- 
nies of  the  ancient  world  those  of  Greece  and  Phoe- 
nicia along  the  shores  of  the  Mediterranean  are  the 
most  noteworthy.  The  Phoenician  settlements  were  for 
the  most  part  merely  trading  stations,  but  there  were 
exceptions  also  (such  as  Carthage)  in  which  a  large 
body  of  emigrants  established  a  permanent  agricultural 
settlement.  The  colonies  of  Greece  were  on  a  larger 
scale  :  they  resulted  first  of  all  from  the  Dorian  inva- 
sion of  the  Peloponnesus  about  1000  b.  C,  which  drove 
many  fugitives  to  seek  new  homes.  Similarly  the  con- 
quests of  the  Spartans  and  the  inroads  of  the  Persians 
occasioned  a  scattering  of  some  of  the  conquered  tribes. 
Other  colonies  were  due  to  the  political  dissensions 
with  which  the  restless  city  states  of  Greece  were  rife 
and  which  sometimes  resulted  in  the  deliberate  with- 
drawal of  a  part  of  the  citizens  to  found  a  new  city 
elsewhere.  But  the  establishment  of  Greek  and  Phoe- 
nician colonies  did  not  involve  what  we  now  think  of 
as  colonial  government.    Athens,  indeed,  succeeded  in 


262      THE   STRUCTURE   OF  THE   GOVERNMENT 

exacting  money  tribute  from  the  cities  she  had  planted 
in  the  ^gean  Sea,  basing  her  claim  on  the  naval  pro- 
tection afforded  them.  But  the  general  practice  was  to 
regard  a  colony  as  an  independent  political  unit  from 
its  inception.  It  was  an  emigration,  an  "  outswarming  " 
of  freemen  who  carried  with  them  the  same  right  of 
self-government  that  they  had  had  in  their  former  home. 
A  somewhat  different  type  of  colony  made  by  settle- 
ment in  ancient  times  is  seen  in  the  Roman  colonia. 
This  was  a  settlement  of  Roman  soldiers  on  land  allotted 
to  them  by  their  general  after  it  had  been  conquered  ; 
here  the  prime  object  was  to  create  a  frontier  defense 
of  the  empire,  but  these  colonies  often  developed  into 
permanent  settlements. 

3.  Colonial  Expansion  after  the  Discovery  of 
the  Sea  Route  to  the  East  Indies  and  the  Discov- 
ery of  America ;  Spanish  Colonial  System.  It  is 
with  the  discovery  of  the  sea  route  to  the  East  Indies 
and  of  America  that  modern  colonization  begins.  The 
sixteenth  century  opened  to  the  adventurous  spirits  of 
Europe  a  wonderland  of  unknown  countries,  in  which 
to  satisfy  their  passion  for  exploration  and  adventure, 
their  lust  for  gold,  their  chivalrous  ambition  to  increase 
the  dominions  of  their  king,  and  their  pious  desire  to 
spread  the  Christian  religion  to  the  uttermost  parts  of 
the  earth.  It  was  in  this  age  of  adventure  and  conquest 
that  Spanish  and  Portuguese  colonial  aggrandizement 
acquired  the  peculiar  characteristics  of  domination  and 
levying  of  tribute  which  proved  its  ruin.  The  Portu- 
guese, sailing  around  the  Cape  of  Good  Hope,  secured 
a  monopoly  of  the  rich  trade  of  the  East.  Thither  their 
merchants  flocked  in  great  numbers,  setting  up  trading 


COLONIAL  GOVERNMENT  263 

stations  on  the  coast  of  Africa  (Sofala,  Zanzibar),  on 
the  shores  of  the  Indian  Ocean  (Goa,  Malacca,  etc.), 
among  the  East  India  Islands,  and  even  in  China  and 
Japan  (1542).  In  Brazil,  partly  by  sending  over  exiled 
Jews  and  transported  criminals,  they  founded  a  planta- 
tion colony  in  which  the  sugar  cane  was  cultivated  and  to 
which  slaves  were  early  introduced  from  the  coast  of 
Guinea.  Feudal  grants  of  land  were  made  to  nobles  of 
Portugal  with  almost  absolute  power  over  the  natives. 
The  Spaniards,  equally  adventurous,  directed  them- 
selves not  to  the  East,  but  to  the  West  Indies,  and  to 
the  mainland  of  Central  and  Southern  America.  A  bull 
of  Pope  Alexander  VI  (1493)  had  divided  the  unchris- 
tian world  with  magnificent  generosity  between  Spain 
and  Portugal ;  Spain  was  to  have  the  western  world, 
Portugal  the  east.  A  revision  of  the  shares  by  treaty 
gave  Brazil  and  Labrador  to  Portugal  and  all  the  rest 
of  America  to  Spain.  The  Spaniards  proceeded  to 
make  good  this  shadowy  claim  by  vigorous  conquest. 
By  the  year  1510,  Cuba,  Hispaniola,  Porto  Eico, 
Jamaica,  and  other  islands  had  fallen  an  easy  prey. 
Mexico  was  conquered  by  Cortes  (1519-21),  and  Peru 
fell  before  the  brutal  conqueror  Francis  Pizarro  (1525- 
35).  Thence  Spanish  dominion  spread  over  the  whole 
of  Central  and  South  America,  except  Brazil. 

From  the  very  beginning,  however,  the  colonial  sys- 
tem of  Spain^  had  taken  a  false  bias.  The  colonial  es- 
tablishments were  regarded  solely  as  a  source  of  profit 
to  the  conquerors.  There  was  no  question  of  real  self- 
government  or  liberty  of  trade.    A  recent  writer  ^  has 

^  See  Zimmermann,  Die  Europiiischen  Kolonien,  vol.  i  (1896). 
2  Professor  Blackmar,  U.  S.  Bureau  of  Statistics  Publication,  Colo- 
nial Administration  (1901). 


264     THE  STRUCTURE  OF  THE  GOVERNMENT 

thus  described  the  Spanish  system  of  administration  in 
the  centuries  which  followed  :  "  All  the  laws,  the  con- 
trol of  trade,  commerce,  agriculture,  finance,  taxation, 
the  foundation  of  municipalities,  the  management  of  the 
natives,  and  the  regulation  of  religion  were  made  in  the 
mother  country,  and  sent  to  the  colonies  with  the  expec- 
tation that  the  colonies  would  adapt  themselves  to  the 
laws.  Nor  did  the  decrees  of  the  crown  and  its  agencies 
stop  here,  but  the  home  bureau  organized  the  colonial 
government,  local  and  central.  The  officers  and  rulers 
were  natives  of  Spain  sent  out  to  rule  their  distant  de- 
pendencies. During  the  Spanish  domination  in  Amer- 
ica nearly  all  the  important  offices  of  the  state  and 
church  had  been  filled  by  Spaniards.  The  presidents 
and  judges  of  the  courts  were  from  Spain.  There  were 
18  Americans  out  of  672  viceroys,  captains-general,  and 
governors;  and  105  native  bishops  out  of  706  who  ruled 
in  the  colonies.  This  system  of  officialism  continued  in 
all  of  the  colonial  possessions  of  Spain  to  the  close  of 
the  present  [the  nineteenth]  century."  In  matters  of 
trade  and  industry  the  Spanish  colonies  were  under  the 
most  stringent  regulation.  They  could  trade  with  no 
other  country  but  Spain  itself,  and  even  then  only 
through  the  organization  known  as  the  Casa  de  Contra- 
tacion,  which  held  a  monopoly.  That  such  a  system 
contained  in  itself  the  seeds  of  its  own  ruin  is  only  too 
evident.  The  revolt  of  the  Sjianish  colonies  and  the 
establishment  of  their  independence  in  the  early  part 
of  the  nineteenth  century  were  the  natural  outcome  of 
such  a  vicious  and  short-sighted  colonial  policy. 

4.    Colonial  Policy  of  England  and  France  in 
the  Seventeenth  and  Eighteenth  Centuries.    Al- 


COLONIAL  GOVERNMENT  265 

though  England  and  France  were  early  in  the  field 
with  voyages  of  exploration  (Cabot,  1497,  Cartier, 
1534)  the  establishment  of  their  American  colonies 
belongs  to  the  seventeenth  century.  With  Champlain's 
permanent  settlement  on  the  St.  Lawrence  (1603),  and 
the  landing  of  the  Pilgrim  Fathers  (1620)  the  begin- 
nings were  laid  of  New  France  and  New  England. 
From  the  grant  of  the  charter  to  the  Virginia  Com- 
pany, 1606,  dates  the  commencement  of  the  plantation 
colonies  of  the  South.  That  the  English  colonies 
grew  and  flourished  on  the  Atlantic  is  to  be  attributed 
to  the  good  fortune  of  the  English  government,  rather 
than  to  its  political  foresight.  The  sterling  qualities 
of  the  colonists  themselves,  animated  by  the  high 
purpose  of  religious  refugees,  or  by  the  daring  of 
adventurers,  had  much  to  do  with  their  success.  It 
was  through  the  neglect,  and  not  by  the  policy,  of  the 
home  government,  that  the  colonists  acquired  their 
political  right  of  self-government.  The  charter  granted 
to  the  Massachusetts  Bay  Company  in  1628  was 
intended  by  the  government  as  a  sort  of  commercial 
instrument  for  the  conduct  and  governance  of  a  trad- 
ing company.  It  was  the  emigration  of  the  officers 
and  the  company  itself  to  the  shores  of  America  which 
converted  it  into  a  political  constitution.  In  the  seven- 
teenth century  the  English  in  general  did  not  dream 
of  the  magnitude  of  the  colonial  empire  which  lay 
within  their  reach.  In  this  their  colonial  policy  was 
sharply  contrasted  with  that  of  France.  The  French 
government  early  recognized  the  possibilities  of  Ameri- 
can colonization  ;  they  realized  the  value  of  the  St.  Law- 
rence and  the  Mississippi  as  opening  the  way  to  the 


26G     THE  STRUCTURE  OF  THE  GOVERNMENT 

interior  of  the  continent,  and  planned  a  vast  colonial 
enii^ire  which  should  encircle  the  narrow  English 
settlement  of  the  Atlantic  seaboard.  The  English 
government  in  the  seventeenth  century  gave  little  or 
no  help  to  its  dependencies ;  the  French  were  ready 
from  the  first  with  money  and  ships  to  be  used  in  the 
upbuilding  of  New  France.  It  has  been  part  of  the 
irony  of  history  that  the  magnificent  empire  thus 
planned  by  the  French  should  have  passed  by  the 
fortune  of  war  into  the  hands  of  the  British  crown. 

But  before  the  close  of  the  seventeenth  century,  the 
American  colonies,  from  their  growth  in  population  and 
the  development  of  their  resources,  began  to  assume  a 
new  importance.  The  colonial  trade  offered  a  harvest  to 
the  merchants  of  the  mother  country,  and  supplied  a  new 
bone  of  contention  to  vex  the  long-standing  quarrels  of 
England  and  France.  Indifferent  as  the  British  gov- 
ernment had  been  to  the  political  position  of  its  earlier 
colonists,  it  adopted  in  reference  to  the  growing  trade 
of  the  colonies  a  policy  much  resembling  that  of  Spain. 
So  too  did  the  French,  whose  colonial  schemes  included, 
of  course,  the  profit  to  be  derived  by  the  mother  coun- 
try from  the  natural  wealth  of  its  possessions.  Already 
in  the  reign  of  Charles  II  the  navigation  acts  ^  had 
placed  restrictions  on  colonial  commerce.  By  the  first 
of  these  (1660)  foreign  ships  were  forbidden  to  trade 
with  the  colonies.  All  colonial  sugar,  tobacco,  cotton, 
indigo,  and  other  enumerated  articles  were  to  be  sent 
only  to  England,  or  to  an  English  possession;  nor  could 

^  For  tlie  contents  of  the  navig-ation  acts  and  a  criticism  of  British 
colonial  policy  involved,  the  student  may  consult  Egerton,  Short  Ilis- 
tory  of  British  Colonial  Policy,  a  really  admirable  work. 


COLONIAL  GOVERNMENT  267 

foreigners  become  merchants  in  an  English  colony, 
A  new  act  of  1663  kept  out  all  ships  that  had  been 
built  in  foreign  countries.  An  act  of  1664  obliged 
Euroj^ean  goods,  even  if  jslaced  in  English  ships,  to  be 
first  landed  in  England  before  being  exported  to  the 
colonies.  Finally,  an  act  of  1672  made  goods  passing 
from  colony  to  colony  liable  to  whatever  customs  du- 
ties they  would  have  incurred  if  brought  into  England. 
These  are  the  famous  navigation  acts  which  formed  the 
basis  of  the  English  colonial  policy  of  the  eighteenth 
century.  It  was  necessary  indeed  to  modify  them  by 
making  concessions  to  the  colonists  where  they  became 
too  burdensome.  The  trade  in  wine  and  fish  between 
Portugal  and  New  England  was  made  an  exception. 
On  the  other  hand  the  acts  were  reenforced  by  a  num- 
ber of  statutes  in  the  early  part  of  the  eighteenth  cen- 
tury. Such  a  commercial  code,  if  applied  to  a  modern 
colony,  would  appear  monstrous.  It  can  however  be 
said  in  defense  of  the  acts,  that  they  helped  to  encour- 
age the  growth  of  British  and  colonial  shipping,  and 
thus  contributed  to  the  national  defense  of  both  the 
mother  country  and  the  colonies.  Nor  did  the  restric- 
tions laid  upon  trade  press  as  severely  upon  the  colonies 
as  might  be  imagined.  Evasion  of  the  laws  was  notorious, 
and  in  any  case  the  natural  direction  of  commerce  was  to 
the  British  Isles.  Less  defense  can  be  found  for  the  pol- 
icy of  Great  Britain  in  legislating  in  the  eighteenth  cen- 
tury against  colonial  manufactures.  "The  creating  of 
manufactures  in  the  colonies,"  ran  a  resolution  of  the 
British  House  of  Commons  in  1719,  "  tends  to  lessen 
their  dependence  on  Great  Britain."  In  accordance 
with  this  a  statute  of  that  year,  fortunately  applied  only 


268      THE   STRUCTURE  OF   THE   GOVERNMENT 

in  part,  forbade  all  forms  of  iron  manufacture  in  the 
American  colonies.  Indeed,  when  all  is  said,  the  whole 
code  of  commercial  and  industrial  regulation  must  be 
considered  as  the  outcome  of  the  inveterate  European 
habit  of  viewing  colonial  establishments  as  a  source 
of  mercantile  profit.  "  The  deliberate  selfishness  of 
English  commercial  legislation,"  says  Mr.  Lecky, "was 
digging  a  chasm  between  the  mother  country  and  her 
colonies,  which  must  inevitably,  when  the  latter  had  be- 
come sufficiently  strong,  lead  to  separation."  ^ 

5.  The  American  Revolution.  The  quarrel  be- 
tween England  and  her  American  colonies  which  ended 
finally  in  independence  is  the  most  important  fact  in  the 
evolution  of  colonial  government.  It  showed  to  the  world 
the  elementary  fact  of  colonial  administration,  that  no 
civilized  colony  of  size  and  increasing  population  can 
be  kept  in  a  state  of  permanent  political  tutelage.  It 
led  England  to  adopt,  not  immediately  but  ultimately, 
the  policy  of  colonial  autonomy.  What  had  previously 
been  done  through  neglect  was  now  sanctioned  by  the 
teaching  of  experience.  Yet,  as  in  every  quarrel,  there 
were  certainly  two  sides  to  the  question.  On  the  one 
side  was  the  righteous  protest  of  a  free  people  against 
political  dictation,  against  that  "  taxation  without  re- 
presentation," the  very  sound  of  which  is  repugnant  to 
Anglo-Saxon  ears  :  on  the  other  side  were  pressing 
needs  of  imperial  defense.^  The  patriotism  of  national 
historians  has  long  obscured  the  one  or  the  other  of 

^  W.  E.  H.  Lecky,  History  of  England  in  the  Eighteenth  Century,  vol. 
iii,  chap.  xii. 

^  The  Eng-lish  side  of  the  controversy  is  to  be  found  in  Lecky, 
History  of  England  in  the  Eighteenth  Centtiry,  vol.  iii,  chap,  xii ;  and 
Egerton,  Short  History  of  British  Colonial  Policy,  bk.  ii  {passim). 


COLONIAL  GOVERNMENT  269 

the  two  sides  of  the  controversy ;  it  is  only  after  a 
lapse  of  a  century  and  a  half  that  a  clearer  vision  is 
becoming  possible.  That  the  American  resistance  to 
imperial  taxation  in  the  form  in  which  it  came  to  them 
was  justified  seems  beyond  a  doubt.  But  the  colonies 
were  equally  wrong  in  adopting  towards  the  vexed 
question  of  imperial  finance  the  selfish  inertia  of  in- 
difference. Unkindly  critics  have  not  scrupled  to  say 
that  it  was  not  "  taxation  without  representation  "  that 
they  resented,  but  taxation  in  any  form  and  by  any 
authority.  The  strain  on  the  imperial  treasury  of  pro- 
tecting Bi-itish  subjects,  both  home  and  colonial,  against 
foreign  powers  had  been  great.  The  successive  wars 
against  France  —  King  William's  war  (1689-97),  Queen 
Anne's  war  (1702-13),  King  George's  war  (1744-48), 
and  the  French  war  (1756-63),  to  give  them  the 
names  by  which  they  were  known  to  the  colonists  — 
had  increased  the  national  debt  at  an  alarming  rate. 
Amounting  in  1702  to  a  little  over  twelve  and  a  half 
millions  pounds,  it  stood  at  over  one  hundred  and  thirty- 
two  millions  at  the  Peace  of  Paris  (1763).  Much  of 
this  had  been  spent  in  defense  of  the  American  posses- 
sions. The  colonies  indeed  had  contributed,  in  separate 
fashion  and  in  unequal  proportion,  both  money  and  men 
to  aid  the  British  arms  in  America.  It  was  a  colonial 
expedition  that  captured  Louisburg  in  1745,  the  money 
thus  spent  being  partly  reimbursed  by  a  parliamentary 
grant  from  Great  Britain.  But  colonial  contributions 
for  defense  were  irregular  and  unequal.  The  colonies 
removed  from  the  scene  of  immediate  danger  were  in- 
clined to  shirk  responsibility  altogether.  During  King 
George's  war  the  New  York  Assembly  proved  quite 


270     THE   STRUCTURE   OF  THE   GOVERNMENT 

intractable.  At  first  they  would  do  nothing  for  defense ; 
later  they  contributed  money  sparingly  for  the  Louis- 
burg  expedition,  but  would  send  no  men.  New  Jersey 
was  an  inveterate  delinquent.  Sheltered  by  the  adja- 
cent colonies  from  the  actual  ravages  of  frontier 
warfare,  she  was  never  ready  to  make  adequate  contri- 
bution towards  the  common  defense.  In  Queen  Anne's 
war  the  Assembly  struggled  hard  to  prevent  the  raising 
of  a  military  force,  and  was  only  forced  into  doing  so 
by  the  packing  of  the  house.  Contributions  were  made 
to  King  George's  war,  but  in  the  great  final  struggle 
of  the  French  war  New  Jersey  remained  culpably  in- 
active.^ These  were  not  isolated  instances,  but  were 
characteristic  of  the  difficulty  of  obtaining  joint  action 
from  the  colonial  governments.  Mr.  Lecky  thus  de- 
scribes the  situation:  "In  order  to  raise  the  money  for 
the  support  of  the  American  army  it  was  necessary  to 
have  the  assent  of  no  less  than  seventeen  colonial  as- 
semblies. The  hopelessness  of  attempting  to  fulfill 
these  conditions  was  very  manifest.  If  in  the  agonies 
of  a  great  war  it  had  been  found  impossible  to  in- 
duce the  colonies  to  act  together ;  if  the  Southern  col- 
onies long  refused  to  assist  the  Northern  ones  in  their 
struggle  against  France  because  they  were  far  from 
the  danger  ;  if  South  Carolina,  when  reluctantly  raising 
troops  for  the  war,  stipulated  that  they  should  act  only 
within  their  own  province  ;  if  New  England  would  give 
little  or  no  assistance  while  the  Indians  were  carrying 
desolation  over  Virginia  and  Pennsylvania,  what  chance 
was  there  that  all  these  colonies  would  agree  in  time 

^  See  Lodge,  Short  History  of  the  English  Colonies  in  America,  chap. 


COLONIAL  GOVERNMENT  271 

of  peace  to  propose  uniform  and  proportionate  taxation 
on  themselves  in  support  of  an  English  army  ?  "  The 
financial  difficulty  to  be  faced  was  thus  an  actual  one, 
though  aggravated  by  the  mistaken  policy  of  the  Brit- 
ish crown.  The  colonies  and  the  mother  country  had 
reached  an  impasse  ;  further  continuance  on  the  exist- 
ing basis  was  no  longer  possible ;  the  only  solution 
could  have  been  found  in  a  joint  revision  of  inter- 
imperial  relations  ;  this  the  dull  stupidity  of  the  Eng- 
lish administration  and  the  willful  inertia  and  mutual 
jealousies  of  the  colonies  rendered  impossible.*  It  is 
of  Imj)ortance  properly  to  appreciate  the  historic  situ- 
ation thus  created  ;  for  the  relative  financial  situation 
of  Britain  and  her  colonies  Is  now  reproducing  itself 
on  the  horizon  of  the  twentieth  century.  To  this  at- 
tention will  be  directed  later. 

6.  Alteration  of  British  Colonial  Policy  in  the 
Nineteenth  Century;  Establishment  of  Self -Gov- 
ernment. In  what  has  been  said  above  it  Is  not  meant 
to  imply  that  the  system  of  self-government  In  the  col- 
onies was  established  at  once  after  the  American  Revo- 
lution. Indeed,  for  the  time  being,  the  case  was  rather 
the  contrary.  The  king  and  his  ministers,  attributing 
the  disaster  of  their  colonial  system  to  the  license  al- 
lowed to  the  colonial  assemblies,  were  Inclined  to  tighten 
their  grip  upon  their  remaining  dependencies.  The 
Quebec  act  of  1774  established  royal  government  in 
Canada  with  no  elective  assembly,  but  only  a  council 

^  The  rejection  of  the  scheme  of  the  Albany  congress  (1754),  re- 
jected by  both  mother  country  and  colonies ;  the  recognition  by 
various  colonial  governors  of  insight,  of  the  need  of  union  and  joint 
taxation ;  Governor  Pownall's  proposition  of  an  imperial  customs 
union  —  may  be  reckoned  among  the  signs  of  the  times. 


272     THE  STRUCTURE  OF  THE  GOVERNMENT 

nominated  by  the  crown.  Even  under  Pitt's  constitu- 
tional act  of  1791  the  measure  of  liberty  granted  to 
the  Canadians,  and  intended  to  reward  the  allegiance 
of  the  Loyalists,  consisted  only  in  the  right  to  elect  the 
members  of  the  lower  house  in  each  of  two  provinces. 
The  governor,  the  executive  council,  and  the  legislative 
council  or  upper  house,  were  all  appointed  by  the  crown. 
The  same  is  true  of  the  other  North  American  colonies. 
Those  that  already  had  partial  self-government  (as 
Nova  Scotia,  Barbadoes,  Jamaica,  Bermuda)  were  not 
deprived  of  it,  but  those  newly  acquired  (Trinidad, 
etc.)  were  kept  under  crown  government.  Cape  Colony, 
definitely  ceded  in  1815,  remained  under  military  gov- 
ernment till  1835.  Even  then  the  civil  government 
established  was  a  nominated  and  not  an  elective  one. 
Self-government  being  out  of  the  question  in  a  penal 
settlement,  Australia  remained  long  in  direct  depend- 
ence on  the  crown.  But  the  lesson  taught  by  the 
American  Revolution  had  nevertheless  been  effective. 
As  the  new  colonies  grew  in  population  and  importance, 
the  opinion  gained  strength  that  both  justice  and  ex- 
pediency demanded  that  they  should  administer  their 
own  affairs.  Even  on  commei'cial  principles  it  was 
thought  that  colonial  liberty  was  more  profitable  than 
colonial  bondage.  The  doctrines  of  the  political  econo- 
mists which  became  in  the  middle  of  the  century  the 
official  creed  of  the  English  government,  brought  about 
the  establishment  of  free  trade  (184G)  and  the  repeal 
of  what  was  left  of  the  navigation  acts  (1849).  Already 
before  this  the  serious  rebellion  in  Canada  (1837)  and 
Lord  Durham's  report,  strongly  recommending  the 
establishment  of   responsible  government,  had  called 


COLONIAL  GOVERNMENT  273 

public  attention  to  dangers  of  the  existing  system.  The 
act  of  union  of  1840,  joining  upper  and  lower  Canada 
into  one,  introduced  the  principle  of  parliamentary  self- 
government  on  the  model  of  the  British  parliament. 
In  the  next  decade  the  same  "  enfranchisement "  was 
extended  to  the  other  provinces  of  British  North 
America  and  to  all  the  other  colonies  in  a  position  to 
receive  it,  —  to  New  Zealand  (1852),  to  Cape  Colony 
(1853),  to  Victoria  (1854),  to  New  South  Wales  and 
Tasmania  (1855),  to  South  Australia  (1856),  and  to 
Queensland  (1859). ^ 

It  is  interesting  and  instructive  to  observe  the  atti- 
tude adopted  in  England  towards  the  colonies  at  the 
time  of  the  grant  of  self-government,  and  in  the  period 
immediately  following.  In  the  first  place  two  great 
questions  of  paramount  interest  in  the  colonial  policy 
of  the  present  day  were  left  entirely  out  of  sight,  — 
the  tariff  relations  of  the  colonies  with  the  mother 
country,  and  the  question  of  imperial  defense.  That 
the  tariff  should  have  passed  unconsidered  was  entirely 
to  be  expected  in  the  light  of  the  ideas  then  prevalent ; 
indeed  the  question  seemed  to  have  settled  itself  in  the 
course  of  nature,  and  the  optimistic  free-traders  of  the 
middle  of  the  century  took  it  for  granted  that  tariff 
barriers  were  soon  destined  to  disappear  the  world 
over.  It  seemed  unnecessary,  therefore,  to  stipulate 
for  free  trade  or  any  form  of  customs  union  between 
the  United  Kingdom  and  its  dependencies.    The  other 

^  Lord  Grey's  treatise,  The  Colonial  Policy  of  Lord  John  EusseWs 
Administration,  is  a  formal  defense  of  the  policy  thus  adopted.  Natal 
■was  granted  an  elected  legislature  in  1S5G  and  acquired  responsible 
government  in  1893. 


274     THE  STRUCTURE   OF  THE  GOVERNMENT 

problem,  that  of  imperial  defense,  was  also  passed  over : 
perhaps  by  virtue  of  the  very  difficulty  of  its  solution, 
perhaps  as  a  result  of  the  sanguine  hopes  that  had  been 
fostered  in  the  peace  era.  The  policy  adopted  was  not 
everywhere  approved.  Disraeli,  speaking  in  1872,  and 
foreseeing  with  characteristic  prescience  the  difficul- 
ties that  must  arise,  pronounced  it  a  mistake.  "  Self- 
government,"  he  said,  "ought  to  have  been  conceded 
as  part  of  a  great  policy  of  imperial  consolidation.  It 
ought  to  have  been  accompanied  by  an  imperial  tariff 
.  .  .  and  by  a  military  code  which  should  have  pre- 
cisely defined  the  means  and  the  responsibilities  by 
which  the  colonies  should  be  defended,  and  by  which, 
if  necessary,  this  country  should  call  for  aid  from  the 
colonies  themselves." 

But  the  real  secret  of  the  willingness  of  the  English 
people  to  leave  the  government  of  the  colonies  in  the 
hands  of  the  colonists  themselves  lay  in  the  new  view 
that  was  becoming  current  as  to  the  "  manifest  destiny  " 
of  the  British  colonies.^  The  example  of  the  rise  and 
progress  of  the  United  States  seemed  to  point  towards 
the  inevitable  future  of  all  great  dependencies  inhabited 
by  an  enlightened  and  increasing  population.  Independ- 
ence seemed  only  a  question  of  time,  and  the  duty  of 
the  mother  country  was  to  give  the  colonies  a  sound 
political  education  in  the  methods  of  responsible  gov- 
ernment, and  when  the  destined  hour  came  to  let  them 
depart  in  peace.  The  views  of  the  "little  Englanders," 
of  the  Manchester  school  of  economists,  averse  to  large 
military  and  naval  expenditures,  cosmopolitan  in  their 

^  For  interesting  details  in  this  connection  see  B.  Holland,  Imperium 
et  Libertas  (1901). 


COLONIAL   GOVERNMENT  275 

sympathies  and  sanguine  in  their  hopes  of  the  commer- 
cial unity  of  the  world,  powerfully  stimulated  public 
feeling  in  this  direction.  It  is  astonishing  at  the  present 
date  to  look  back  on  the  opinion  then  prevalent.  Sir 
r.  Rogers  (afterwards  Lord  Blackford),  who  for  eleven 
years  was  permanent  under-secretary  for  the  colonies 
(1860-71),  wrote  at  a  later  date  (1885)  of  the  views 
he  held  in  the  following  terms :  "  I  had  always  believed, 
—  and  the  belief  has  so  far  confirmed  and  consolidated 
itself,  that  I  can  hardly  realize  the  possibility  of  any 
one  seriously  thinking  the  contrary  —  that  the  destiny 
of  our  colonies  is  independence :  and  that  in  this  point 
of  view  the  function  of  the  Colonial  Office  is  to  secure 
that  our  connection,  while  it  lasts,  shall  be  as  profitable 
to  both  parties,  and  our  separation,  when  it  comes,  as 
amicable  as  possible."  Such  views  were  only  too  com- 
mon in  the  period  of  colonial  history  from  1840  to  1880. 
Payne, in  his  "History  of  European  Colonies"  (1877), 
designed  as  an  educational  work  for  English  schools, 
wrote  :  "  Canada  and  Victoria  are  bound  to  England 
by  a  tie  so  slight  that  its  rupture  would  not  at  all  be 
dreaded;  and  such  a  rupture  would  hardly  be  felt 
whenever  it  happened."  Great  indeed  is  the  contrast 
between  such  a  point  of  view  and  the  sentiments  now 
entertained  both  in  Great  Britain  and  the  colonies,  of 
the  relations  of  the  dependencies  to  the  mother  country. 
But  before  considering  the  new  imperialism  and  its  polit- 
ical consequences,  it  will  be  best  to  pass  briefly  in  review 
the  varied  systems  of  government  at  present  obtaining 
in  the  colonial  possessions  of  the  United  Kingdom. 

7.   Present  British  System  of  Colonial  Admin- 
istration.   First  let  us  consider  the  general  principles 


276     THE  STRUCTURE  OF  THE  GOVERNMENT 

which  are  adopted  in  the  management  of  the  British 
colonial  possessions.  Some  persons  indeed  might  deny 
that  there  are  any  general  principles  involved  ;  for  it  is 
contrary  to  the  spirit  of  British  institutions  to  act  on  a 
formal  and  preconceived  plan,  and  the  method  adopted 
is  rather  a  habitual  way  of  doing  things,  based  on  the 
teaching  of  experience,  than  a  scientific  and  complete 
system  of  administration.  The  British  system,  if  the 
word  may  be  allowed,  recognizes  no  absolute  right  of 
self-government.  It  aims,  in  the  woi-ds  of  Earl  Grey, 
to  allow  "  the  inhabitants  to  govern  themselves  when 
sufficiently  civilized  to  do  so  with  advantage"  and, 
where  this  is  not  the  case,  to  provide  "  a  just  and  im- 
partial administration  of  those  colonies  of  which  the 
population  is  too  ignorant  and  unenlightened  to  manage 
its  own  affairs."  It  is  recognized  therefore  that  the 
government  adopted  in  each  colony  must  be  in  accord 
with  the  particular  conditions  presented,  must  vary 
according  to  the  race,  character,  and  number  of  the 
population,  their  degree  of  enlightenment,  the  extent 
of  the  territory,  and  (as  in  the  case  of  Gibraltar)  with 
the  possible  military  importance  of  the  place  for  the 
defense  of  the  empire.  Within  these  limits  the  princi- 
ple obtains  that  a  colonial  community  of  which  the  great 
majority  is  made  of  civilized  whites  shall  be  granted 
the  fullest  autonomy ;  while  to  the  other  colonies  shall 
be  extended  such  a  measure  of  self-government  as 
their  circumstances  seem  rightly  to  demand.  The  prin- 
ciple of  political  training  for  future  self-government, 
as  is  seen  in  the  case  of  the  elected  municipal  bodies  in 
India,  is  also  recognized.  In  the  case  of  every  colony, 
however,  the  crown  retains  a  certain  power  of  control ; 


COLONIAL  GOVERNMENT  277 

the  governor,  or  executive  head  of  the  colony,  some- 
times nominal,  sometimes  actual,  is  the  nominee  of  the 
crown  ;  the  crown  reserves  a  veto  on  all  colonial  legis- 
lation ;  the  final  court  of  appeal  for  colonial  cases  is  the 
judicial  committee  of  the  Privy  Council. 

Though  resting  on  this  general  plan,  the  governments 
of  the  British  colonies  present  the  greatest  range  of 
diversity  in  the  details  of  their  political  constitution. 
Various  classifications  have  been  offered,  of  which  the 
most  satisfactory  seems  to  be  the  separation  first  of 
all  into  three  great  classes,  —  the  crown  colonies, 
the  representative  colonies,  the  responsible  colonies. 
The  crown  colonies  are  those  which  have  no  self- 
government  ;  the  representative  colonies  are  those 
which  have  partial  self-government ;  the  responsible 
colonies  are  those  which  have  complete  self-govern- 
ment. These  three  divisions  may  be  taken  to  indicate, 
not  only  the  classification  of  the  dependencies  at  any 
particular  time,  but  also  the  stages  through  which  a 
British  colony  passes  in  the  upward  progress.  Canada, 
as  has  been  seen,  was  a  crown  colony  from  its  conquest 
until  1791,  a  representative  colony  until  the  act  of 
1840,  and  since  then  a  responsible  colony. 

In  the  first  of  these  divisions,  the  crown  colonies 
(with  which  also  the  various  protectorates  are  to  be 
included),  are  comprised  all  those  dependencies  whose 
governing  officials  are  all  nominated  by  the  crown. 
The  list  includes  the  Straits  Settlements,  Hong  Kong, 
Fiji,  Trinidad,  Sierra  Leone,  Honduras,  Gibi-altar,  St. 
Helena,  and  many  other  places.  Within  the  group, 
however,  various  degrees  of  dependence  on  the  home 
government  are  found.  In  the  places  of  great  military 


278     THE  STRUCTURE  OF  THE  GOVERXMENT 

and  naval  importance  (Gibraltar,  St.  Helena)  and  in 
dependencies  containing  but  few  white  people,  the  con- 
trol of  the  crown  is  complete ;  the  nominated  officials 
are  appointed  directly  by  the  home  government,  and 
sent  out  to  the  colony.  In  Gibraltar  the  whole  legisla- 
tive and  executive  authority  is  vested  in  the  comman- 
der-in-chief, who  is  also  governor.  In  other  possessions, 
representing  a  higher  stage  of  colonial  evolution,  and 
which  contain  a  considerable  element  of  white,  or  at 
least  of  educated  native  inhabitants,  the  control  of  the 
crown  is  less  direct.  In  British  Honduras,  for  example, 
the  administration  is  conducted  by  a  governor  with  a 
nominated  executive  council  of  five  members,  and  a 
legislative  council  consisting  of  three  ex-officio  members 
and  five  others  nominated  by  the  crown  from  among 
the  residents.  The  government  of  Hong  Kong  ap- 
proaches still  more  nearly  to  being  representative. 
The  governor  has  as  his  executive  council  a  nominated 
body  of  eight  members,  six  of  whom  (the  secretary, 
the  officer  commanding  the  troops,  the  treasurer,  the 
attorney-general,  the  harbor  master,  and  the  director  of 
public  works)  hold  their  positions  ex  officio.  There  is~ 
in  addition  a  legislative  council  composed  of  the  same 
ex-officio  members  together  with  the  captain-superin- 
tendent of  police  and  six  unofficial  members,  —  four 
appointed  by  the  crown  (two  of  these  being  Chinese), 
one  nominated  by  the  Chamber  of  Commerce,  and  one 
by  the  local  justices  of  the  peace.  Such  a  body,  it  will 
be  observed,  stops  just  short  of  the  principle  of  pop- 
ular election.  The  details  here  given  are  not  of  im- 
portance in  themselves,  but  are  intended  to  show  the 
careful  grading  of  the  British  colonial  government. 


COLONIAL   GOVERNMENT  279 

The  representative  colonies  are  those  in  whose  gov- 
ernment the  principle  of  election  has  been  introduced, 
without,  however,  being  allowed  to  predominate.  To 
this  class  belong  Ceylon,  Jamaica,  Mauritius,  the  Baha- 
mas, Barbados,  British  Guiana,  Bermuda,  etc.  Here 
again  two  degrees  of  relative  dependence  may  be 
distinguished.  In  some  of  them  (as  Mauritius  and. 
Jamaica)  the  legislature  consists  of  a  single  body,  a 
part  of  whose  members  are  nominated  and  the  rest 
elected ;  in  others  (as  Barbados)  the  legislature  con- 
sists of  two  houses,  one  entire  house  being  elected  by 
the  people.  But  in  all  the  representative  systems,  the 
officers  of  the  executive  are  nominated,  and  the  par- 
liamentary system  of  government  does  not  obtain.  The 
legislature  (Council  of  Government)  of  Mauritius,  made 
up  of  the  governor,  eight  ex-officio  members,  with  nine 
nominated  by  the  governor  and  ten  elected  members,  is 
typical  of  the  first  class.  Barbados  illustrates  the  second 
and  more  advanced  type ;  it  has  a  bicameral  legisla- 
ture, the  upper  house  (Legislative  Council)  composed 
of  nine  members  nominated  by  the  crown,  and  the 
lower,  or  House  of  Assembly  (twenty -four  members), 
being  elected  annually  by  the  people. 

At  the  apex  of  the  system  stand  the  really  self-gov- 
erning, the  responsible  colonies,  whose  governments 
are  modeled  on  that  of  the  United  Kingdom  itself. 
These  include  Canada,  Newfoundland,  Australia  (now 
federated),  New  Zealand,  the  Cape  of  Good  Hope, 
and  Natal.  Within  this  group,  in  accordance  with 
the  general  terms  of  the  agreement  of  May  81,  1902, 
between  the  crown  and  the  Boers,  still  in  arms,  are 
to  be  included  the  Transvaal  and  the  Oranefe  Kiver 


280      THE   STRUCTURE   OF  THE   GOVERNMENT 

Colony  as  soon  as  the  progress  of  their  pacification  per- 
mits. The  responsible  colonies  enjoy  a  virtual  inde- 
pendence. Their  governments  have  been  created,  as 
already  seen  in  the  case  of  Canada  and  Australia,  by 
statutes  of  the  British  Parliament  which  are  practically 
equivalent  to  written  constitutions.  With  the  excep- 
tion of  the  nomination  of  the  governor-general  (or  gov- 
ernor, as  the  case  may  be),  the  reservation  of  the  power 
of  disallowing  colonial  statutes,  and  the  retention  of 
the  judicial  committee  of  the  Privy  Council  as  the 
final  court  of  appeal,  the  home  government  withdraws 
from  any  internal  control  of  the  self-governing  colonies. 
It  must  however  be  distinctly  understood  that  in  point 
of  law  this  self-effacement  of  the  imperial  government 
is  only  operative  at  the  pleasure  of  Parliament.  The 
claim  has  indeed  been  raised  in  Canada  that  the  grant 
to  the  Dominion  Pg.rliament  of  "  exclusive  legislative 
authority  "  over  the  matters  enumerated  in  the  British 
North  America  Act  was  "  exclusive  "  of  the  authority  of 
the  Imperial  Parliament  itself.  Such  a  contention  is 
at  variance  with  the  very  basis  of  the  British  constitu- 
tion, and  cannot  for  a  moment  be  accepted.  But  unless 
and  until  a  statute  of  Parliament  allows  it,  neither  the 
crown  nor  any  other  authority  in  the  mother  country 
has  any  power  over  the  colonies  beyond  that  reserved 
in  the  constituent  acts. 

These  colonies  are  thus  left  free  to  manage  their  own 
internal  concerns.  This  includes  the  very  important 
privilege  of  making  their  own  tariff.  All  of  the  autono- 
mous colonies  have  availed  themselves  of  this,  and  have 
erected  protective  tariffs  against  the  trade  of  the  mother 
country.   Though  recently  British  goods  have  been  ad- 


COLONIAL  GOVERNMENT  281 

mitted  into  Canada,  New  Zealand,  and  South  Africa  * 
at  a  preferential  rate  of  duty,  it  was  long  true  that  the 
colonial  tariffs  placed  British  goods  in  the  same  position 
as  those  of  a  foreign  country.  The  colonies  have  not  the 
power  to  conclude  treaties  with  foreign  states,  but  it  has 
been  the  custom  of  Great  Britain,  in  negotiating  treaties 
affecting  immediately  the  greater  colonies,  to  give  a 
ready  hearing  to  the  wishes  of  her  colonial  subjects.  "  It 
is  an  understanding  or  even  maxim  of  the  policy  govern- 
ing the  relations  between  England  and  the  Canadian  Do- 
minion,"  wrote  the  late  Sir  John  Bourinot,  the  leading 
authority  on  the  government  of  Canada,  "  that  Cana- 
dian representatives  shall  be  chosen  and  clothed  with 
all  necessary  authority  by  the  Queen  in  council  to 
arrange  treaties  immediately  affecting  Canada,  and  all 
such  treaties  must  be  ratified  by  the  Canadian  Parlia- 
ment. "  The  form  of  government  prevalent  in  the 
responsible  colonies  is  virtually  the  same  as  in  Eng- 
land, except  that  the  existence  of  the  constituent 
statutes  introduces  everywhere  the  principle  of  consti- 
tutional limitations  analogous  to  what  is  found  in  the 
United  States.  The  governor  exercises  a  nominal 
authority  similar  to  that  of  the  crown.  The  real  execu- 
tive is  the  prime  minister  and  his  cabinet,  whose 
tenure  of  power  is  dependent  upon  the  continued  sup- 
port of  the  majority  of  the  lower  house.  The  Canadian 
senate  is  a  nominated  body  of  limited  members,  but 
the  nominations  are  made  on  the  advice  of  the  ministry, 
and  not,  as  in  the  representative  colonial  councils,  at  the 
pleasure  of  the  crown.    The  same  is  true  of  the  legis- 

1  Preferential  duties  were  adopted  in   1903  by  Cape  Colony,  Trans- 
vaal, Natal,  Orange  River,  and  Rhodesia. 


282      THE   STRUCTURE   OF   THE   GOVERNMENT 

lative  councils  of  Natal,  New  Zealand,  and  Newfound- 
land. The  upper  houses  of  Australia  and  Cape  Colony 
are  elective. 

India,  whose  conditions  are  altogether  unique,  stands 
apart  from  the  rest  of  the  British  colonial  system.  Here 
a  vast  population,  numbering  in  all  about  three  hundred 
million  and  presenting  the  widest  varieties  of  racial 
character,  customs,  and  creeds,  are  more  or  less  under  the 
control  of  the  United  Kingdom.  About  seventy  million 
of  these  are  found  in  the  semi-independient  native  states, 
the  rest  fall  under  the  government  of  what  is  techni- 
cally called  British  India.  The  government  of  India  is 
divided  between  the  home  authorities,  the  central  gov- 
ernment in  India,  and  the  subordinate  or  provincial 
governments.  At  the  head  of  the  home  government  is 
the  crown,  acting  through  the  secretary  of  state  for 
India.  With  this  secretary  is  adjoined  a  special  coun- 
cil composed  of  former  residents  in  India,  holding  office 
for  ten  years,  and  not  eligible  to  sit  in  parliament.  The 
expenditure  of  the  Indian  revenue  must  be  sanctioned 
by  the  secretary  and  a  majority  of  the  council.  All 
other  business  done  in  the  United  Kingdom  in  reference 
to  India  is  conducted  by  means  of  the  council,  but  in 
some  matters  of  a  diplomatic  character,  as  in  dealings 
with  native  states,  the  secretary  acts  alone.  In  India 
itself,  the  supreme  executive  power  lies  in  the  gover- 
nor-general, or  viceroy,  who  is  appointed  by  the  crown. 
He  has  an  executive  council,  which  includes  the 
commander-in-chief  and  the  highest  officials.  For  legis- 
lative purposes,  the  council  is  increased  by  sixteen 
members  appointed  by  the  viceroy.  The  provincial  gov- 
ernments, under  governors  (appointed  by  the  crown)  or 


COLONIAL  GOVERNMENT  283 

lieutenant-governors  (appointed  by  the  governor-gen- 
eral) or  chief  commissioners  (appointed  by  the  gover- 
nor-general in  council)  assisted  by  councils,  are  simi- 
lar in  construction  to  the  central  government.  There  is 
thus  no  attempt  at  self-government  in  either  the  central 
or  provincial  administration  of  British  India.  It  is 
only  in  the  municipal  governments  (by  virtue  of  acts 
of  Parliament,  1882  and  1884)  that  the  elective  princi- 
ple has  been  introduced.  Over  the  native  states  Britain 
exercises  a  varying  degree  of  control.  They  contain  no 
British  officials,  except  an  advisory  resident ;  they  raise 
their  own  armies.  But  they  can  hold  no  diplomatic 
intercourse  with  one  another  or  with  the  outside  world, 
and  have  no  right  to  make  war  or  peace.  Britain  also 
reserves  the  penalty  of  dethronement  as  a  punitive 
power  over  the  native  princes. 

8.  Imperial  Federation.  The  question  of  greatest 
interest  in  connection  with  the  large  self-governing  col- 
onies of  Great  Britain  is  their  political  future.  Their 
rapidly  increasing  population  and  the  development  of 
their  natural  resources  throw  into  a  strong  light  the 
important  position  they  are  destined  to  hold  in  the 
course  of  the  century  now  opening.  The  idea  of  their 
manifest  destiny  as  independent  states,  prevalent  fifty 
years  ago,  has  now  receded  into  the  background.  The 
new  wave  of  imperialism  that  has  affected  public  opin- 
ion in  all  the  great  states  of  the  world  has  fascinated 
the  national  ambitions  of  all  the  British  subjects  with 
the  possibility  of  the  future  power  of  their  colossal 
empire.  The  smaller  destiny  of  isolated  independence 
is  set  aside  in  favor  of  participating  in  the  plenitude 
of  power  possible  in  union.     The  combined  efforts  of 


284      THE   STRUCTURE   OF   THE   GOVERNMENT 

Britain  and  the  colonies  called  forth  by  the  Transvaal 
War  have  done  much  to  strengthen  this  feeling.  But 
with  the  acceptance  of  this  new  point  of  view,  the 
troubled  question  of  interimperial  relations  again 
looms  large  upon  the  horizon.  The  question  is  almost 
identical  with  the  great  colonial  controversy  of  the 
eighteenth  century  already  discussed.  But  the  fi'ame 
of  mind  in  which  it  is  approached  on  both  sides,  and 
the  riper  political  experience  now  available,  remove  it 
to  another  plane.  Yet  it  does  not  seem  possible  that 
another  generation  can  go  by  and  find  Canada  and 
Australia  still  outside  of  the  imperial  councils;  it  hardly 
seems  possible  that  the  group  of  ministers  who  control 
the  foreign  policy  of  the  empire  can  permanently  re- 
main the  appointees  of  the  electorate  of  the  British 
Isles,  to  the  exclusion  of  the  British  dominions  beyond 
the  seas.  If  independence  is  no  longer  to  be  the  future 
ideal  of  the  colonies,  and  since  geographical  reasons 
forbid  a  complete  amalgamation,  it  looks  as  if  the  mani- 
fest destiny  of  the  colonial  system  must  now  be  sought  in 
imperial  federation.  The  movement  that  has  been  made 
in  that  direction  has  enlisted  the  support  of  influential 
men  in  all  parts  of  the  empire ;  but  as  yet  they  are 
only  a  minority.  It  seems,  nevertheless,  as  if  the  con- 
tinued growth  of  the  colonies,  and  the  more  and  more 
imperative  needs  of  imperial  defense,  will  force  the  ques- 
tion to  the  front.  The  difficulty  to  be  overcome  is  great. 
If  a  federal  parliament  is  formed,  it  obviously  will  not 
exercise  authority  over  the  internal  affairs  of  the  Brit- 
ish Isles.  There  must  therefore  be  two  parliaments 
in  Great  Britain  itself,  the  insular  parliament  and  the 
supreme  federal  body.    It  will  not  therefore  be  sufficient 


COLONIAL  GOVERNMENT  285 

to  admit  colonial  representatives  to  the  parliament  at 
Westminster,  but  will  be  necessary  to  totally  reconstruct 
the  legislative  power  in  the  United  Kingdom.  The 
dead  weight  of  inertia  to  be  encountered,  before  such 
a  change  can  be  effected,  will  be  realized  by  all  who 
are  aquainted  with  the  British  political  temperament. 

9.  Recent  Colonial  Expansion  of  European 
States.  But  it  is  now  necessary  to  turn  to  the  consid- 
eration of  the  colonial  expansion  in  recent  times  of 
the  other  great  states  of  Europe,  and  the  methods  they 
have  adopted  in  the  administration  of  their  depen- 
dencies. Since  the  year  1880  the  territorial  area 
claimed  by  the  great  powers  as  their  dependencies  has 
vastly  increased.  The  available  parts  of  Asia,  and  the 
unclaimed  islands  of  the  Pacific  have  fallen  into  Euro- 
pean hands;  the  largest  prey  has  been  found  in  the 
continent  of  Africa,  which  has  practically  been  par- 
celed out  among  the  great  states.  France,  which  had 
commenced  the  conquest  of  Algiers  as  early  as  1830, 
has  extended  its  possessions  in  north  Africa,  and  holds 
not  only  all  Algeria,  but  Tunis,  French  West  Africa, 
the  Sahara,  Wadai,  Senegal,  French  Guinea,  the  Ivory 
Coast,  Dahomey,  and  French  Congo.  This  territory  in- 
cludes nearly  all  of  the  desert,  the  larger  part  of  the  val- 
ley of  the  Niger,  and  central  Africa  north  of  the  Congo. 
The  island  of  Madagascar  was  seized  in  1895.  France 
has  also  (beginning  in  1861)  obtained  a  large  part 
of  Indo-China  (forming  the  dependencies  of  Cochin 
China,  Tonkin,  Annam,  and  Cambodia).  The  French 
dependencies  now  include  in  all  an  area  of  3,740,000 
square  miles,  and  a  population  of  56,000,000  people. 
As  the  larger  part  of  this  area  is  occupied  by  an  un- 


286     THE  STRUCTURE  OF  THE  GOVERNMENT 

civilized  native  population  (In  Madagascar,  for  ex- 
ample, there  are  less  than  two  thousand  Frenchmen  In 
a  population  of  two  and  a  quarter  millions),  it  has 
remained  to  a  great  extent  either  under  military  gov- 
ernment (as  in  central  Africa)  or  under  appointed  offi- 
cials with  military  support  (Madagascar,  Indo-China). 
Where  possible,  however,  in  the  older  colonies  of 
France,  self-government  Is  introduced  ;  Martinique  and 
Guadaloupe  have  each  elected  councils  ;  so  too  has  New 
Caledonia  in  the  south  Pacific.  Algeria  is  governed  as 
part  of  France,  being  divided  Into  departments  and  re- 
presented In  the  Senate  and  in  the  Chamber  of  Deputies. 
Nowhere  has  more  thought  been  directed  to  the  theory 
of  colonial  government  than  In  France,  the  largest  part  of 
the  theoretical  literature  of  recent  times  on  the  subject 
being  French.  In  spite  of  the  fact  that  the  mainte- 
nance of  the  new  colonial  system  proves  a  heavy  burden 
on  the  French  exchequer,  the  dream  of  a  colonial  em- 
pire persists.  It  Is  characteristic  of  the  French  people, 
that  while  the  English  still  keep  their  vast  colonial  pos- 
sessions unrepresented  in  the  parliament  of  the  mother 
country,  France  has  already  adopted  the  principle  of 
colonial  representation.  Cochin  China,  French  India 
(Pondlcherry  and  four  other  towns),  Guiana,  and  Sene- 
gal each  elect  one  deputy ;  Guadaloupe,  Martinique, 
and  Reunion  each  elect  two.  These  last  three,  as  well  as 
French  India,  are  represented  by  one  senator  each. 

The  expansion  of  Germany,  which  began  in  1884, 
has  taken  the  form  of  establishing  "  protectorates  " 
and  "  spheres  of  influence,"  rather  than  colonial  estab- 
lishments In  the  true  sense.  The  territory  tlius  brought 
into  dependence  on  the   German  empire   amounts  to 


COLONIAL  GOVERNMENT  287 

one  million  square  miles.  Most  of  it  is  in  Africa,  and 
is  made  up  of  Togoland,  the  Cameroons,  German 
Southwest  Africa,  German  East  Africa,  etc.  The 
administration  carried  on  by  imperial  governors,  com- 
missioners, secretaries,  etc.,  is  similar  to  that  of  a  Brit- 
ish crown  colony  of  the  primary  type.  There  is  scarcely 
any  European  population.  Italy  also  has  established 
African  dependencies  (Eritrea,  Italian  Somali  Land) 
whose  general  character  and  whose  administration  are 
similar  to  those  of  Germany.  The  colonial  posses- 
sions of  the  Netherlands,  though  not  attributable  to  the 
recent  European  expansion,  are  of  great  wealth  and 
importance.  Their  population  outnumbers  that  of  the 
mother  country  in  the  ratio  of  seven  to  one,  although 
of  the  thirty-five  million  inhabitants  less  than  one  hun- 
dred thousand  are  white.  The  elective  principle  is  no- 
where in  use.  The  governor  of  the  Dutch  East  Indies, 
the  members  of  his  assistant  council,  and  the  provincial 
"  residents "  and  district  "  controllers "  are  all  ap- 
pointed officials.  The  administration  of  the  colony,  how- 
ever, must  be  in  accord  with  the  principles  laid  down 
in  a  Dutch  statute  of  1854,  for  the  "government  of 
Netherlands  India." 

10.  The  Dependencies  of  the  United  States. 
The  most  recent  chapter  in  the  history  of  colonial  ex- 
pansion is  offered  by  the  acquisition  on  the  part  of  the 
United  States  of  a  number  of  dependent  territories. 
The  Hawaiian  Islands,  annexed  in  1898,  may  be  passed 
over  ;  admitted  to  territorial  status  (1900)  and  having 
a  government  similar  to  that  of  the  other  territories 
of  the  United  States,  they  are  not  to  be  looked  upon 
as  a  dependency.    But  the  case  is  different  with  the 


288      THE  STRUCTURE   OF  THE   GOVERNMENT 

islands  acquired  by  cession  from  Spain  (1898),  as  the 
result  of  the  Spanish-American  War  (Porto  Rico,  the 
Philippines,  Guam),  and  with  Tutuila,  Manua,  etc.,  in 
the  Sanioan  group,  annexed  in  1899  at  the  request  of 
their  inhabitants.  Porto  Rico  is  controlled  by  a  gov- 
ernor and  an  executive  council  appointed  by  the  Pres- 
ident of  the  United  States,  and  a  legislature  of  which 
the  lower  house  is  elected  by  the  people,  while  the 
upper  house  consists  of  the  executive  council.  Of  this 
branch  of  the  legislature  at  least  five,  out  of  a  total  of 
eleven,  must  be  natives  of  the  island.  The  principle 
here  adopted  of  forming  a  legislative  body  by  using  an 
executive  council  containing  a  number  of  natives,  re- 
sembles somewhat  the  system  already  described  as  used 
in  the  government  of  British  India.  The  addition  of  a 
lower  house  altogether  elected  makes  the  government 
much  more  nearly  democratic  than  that  of  India,  and 
assimilates  it  very  closely  with  the  government  of  Bar- 
bados. The  government  of  the  Philippine  Islands  has 
not  yet  passed  the  constructive  stage.  For  some  time 
after  the  defeat  of  Spain,  and  even  after  the  formal 
cession  of  the  islands,  the  administration  remained  in 
the  hands  of  the  military  authorities.  This  was  super- 
seded by  civil  government  (July  1,  1901)  vested  in  a 
commission  of  officials  nominated  by  the  President.  An 
act  of  Congress  (July,  1902)  validated  the  creation  of 
the  civil  government  thus  established,  and  the  exercise 
of  power  granted  to  it  by  executive  order.  The  com- 
mission thus  formed  consists  of  a  governor  with  seven 
commissioners,  four  being  Americans  and  three  Fili- 
pinos. The  American  commissioners  are  respectively 
assigned  to  the  departments  of  commerce  and  police, 


COLONIAL  GOVERNMENT  289 

finance  and  justice,  public  instruction,  and  the  inte- 
rior. The  same  act  of  Congress  provides  for  the  future 
government  of  the  Philippines.  Two  years  after  the 
completion  of  a  census  and  the  pacification  of  the 
islands,  a  new  government  will  be  formed  in  which 
the  commission  will  remain  as  the  executive,  but  will 
in  part  lose  its  legislative  functions.  There  will  be  a 
bicameral  legislature  of  which  the  commission  will 
form  the  upper  house,  the  lower  house  (Philippine 
Assembly)  to  consist  of  delegates  elected  from  all  of 
the  people  except  the  non-Christian  tribes. 

The  acquisition  of  the  above  dependencies  by  the 
United  States  has  occasioned  in  recent  years  a  vast 
amount  of  discussion.  It  has  been  a  matter  of  earnest 
debate  as  to  whether  the  acquisition  of  such  distant 
insular  territory  as  the  Philippines,  peopled  by  races 
altogether  alien,  in  part  uncivilized,  and  in  part  openly 
hostile,  was  either  just  or  profitable.  Even  the  consti- 
tutionality of  such  a  proceeding  was  widely  denied. 
The  last  question  has  been  set  at  rest  by  the  interpreta- 
tion of  the  courts,  and  by  the  overwhelming  force  of  ac- 
complished fact.  The  plain  truth  is  that  at  the  making 
of  the  Constitution,  the  acquisition  of  such  territory  as 
the  Philippines  was  not  considered,  either  one  way  or 
the  other.  The  result  is  that  in  reality  the  Constitu- 
tion has  nothing  to  say  about  it.  But  the  convenient 
doctrine  of  implied  powers  has  been  made  to  meet  the 
case.  The  question  involving  the  keenest  discvxssion 
was  that  of  the  tariff.  It  was  held  by  many  that  the 
provision  of  the  Constitution  that  the  tariff  must  be 
uniform  throughout  the  United  States  prevented  Con- 
gress from  making  a  tariff  barrier  between  the  repub- 


290      TPIE  STRUCTURE   OF  THE   GOVERNMENT 

lie  and  its  new  dependencies.  The  Supreme  Court,  how- 
ever, in  the  Insular  Cases  of  1901,  has  decided  that  this 
is  not  the  case.  In  consequence  the  action  of  Congress 
in  setting  up  the  present  tariff  ^  is  constitutional. 

It  may  be  observed  in  conclusion,  that  the  tendency 
of  the  United  States  in  dealing  with  its  dependencies 
has  been  to  proceed  further  in  the  direction  of  popular 
government  than  English  experience  would  warrant. 
The  system  contemplated  in  the  Philippines  of  institut- 
ing a  lower  house  elected  by  the  natives,  would  meet 
with  no  approval  if  suggested  for  the  governance  of 
British  India.  It  has  been  difficult  for  Americans,  in 
whose  minds  the  principle  of  popular  government  has 
always  assumed  a  more  sharply  theoretical  form  than 
is  current  with  the  English,  to  reconcile  themselves  to 
the  "possession"  of  a  dependent  community.  Common 
sense  has  shown  the  impossibility  of  governing  the 
Philippine  Islands  on  the  same  plan  as  Massachusetts 
or  California.  Yet  the  positive  assertion  of  the  Declar- 
ation of  Independence  that  "  all  men  are  created  equal  " 
reads  a  little  awkwardly  in  connection  with  the  govern- 
ment of  a  group  of  islands  by  a  commission  sent  to 
them  from  a  distant  country,  and  with  the  exclusion  of 
the  unchristian  tribes  from  its  futui-e  governance.  But 
as  usual  the  brute  force  of  circumstances  proves  too 
strong  for  abstract  theory,  even  when  clothed  with  the 
historic  authority  of  the  Declaration  of  Independence. 

1  The  tariff  as  between  the  United  States  and  Porto  Rico  was  tem- 
porary and  has  expired.  An  act  of  Congress  of  March  8,  1902,  set  up 
a  tariff  as  between  the  Philippines  and  the  United  States  and  con- 
versely. Products  of  the  islands  enter  the  United  States  at  twenty-five 
per  cent  less  than  the  tariff  rate  applied  to  foreign  countries.  The 
proceeds  are  expended  on  the  islands. 


COLONIAL  GOVERNMENT  291 

The  islands  have  come,  by  the  fortunes  of  a  just  war, 
into  the  possession  of  the  United  States.  It  has  be- 
come a  moral  duty  to  govern  them,  and  only  an  infat- 
uated worship  of  political  abstractions  could  counsel 
handing  tliem  over  to  the  wrangling  anarchy  of  their 
half -civilized  inhabitants. 

READINGS  SUGGESTED 

Egerton,  H.  E.,  Short  History  of  British  Colonial  Policy  (1897), 
bk.  ii. 

Ridges,  E.  A.,  Constitutional  Law  of  England  (1905),  part  vi, 
chap,  ii  (The  Colonies). 

Snow,  A,  H.,  The  Administration  of  Dependencies  (1902),  chap- 
ters xxvi,  xxvii. 

FURTHER  AUTHORITIES 
Lewis,  Sir  G.  C,  Government  of  Dependencies  (1841). 
Todd,  A.,  Parliamentary  Government  in  British  Colonies  (1880). 
Payne,  E.  J.,  Colonies  and  Colonial  Federations  (1905). 
Holland,  B.,  Imperium  et  Libertas  (1901). 
Zimmermann,  A.,  Die  Europaischen  Kolonien  (4  vols.,  1896). 
Colonial  Administration,  U.  S.  Bureau  of  Statistics  (1901), 
Arnold,  W.   T.,   Roman    System  of  Provincial  Administration 

(1879). 
Cotton,  J.  S.,  and  Payne,  E.  J.,  Colonies  and  Dependencies  (1883). 
Bancroft,  G.,  History  of  the  United  States  (1834-74). 
Lodge,  H.  C,  Short  History  of  the  English  Colonies  in  America 

(1881). 
Seeley,  Sir  J.  R.,  Expansion  of  England  (1883). 
Pownall,  T.,  Administration  of  the  Colonies  (1764). 
Reinsch,  P.  S.,  Colonial  Government  (1902). 
Leroy-Beaulieu,  De  la  Colonisation  chez  les  Peoples  Modernes 

(1902). 
Ireland,  A.,  Tropical  Colonisation  (1899). 
Morris,  The  History  of  Colonisation  (1902). 
Reed,  W.,  Problems  of  Expansion  (1900). 
Willoughby,  W.  F.,  Territories  and  Dependencies  of  the  United 

States  (1905). 


A 


CHAPTER  VII 
LOCAL  GOVERNMENT 

1.  Local  and  Central  Government  Distinguished.  —  2.  Areas  of  Local 
Government ;  the  United  States,  France,  England.  —  3.  Composition 
and  Powers  of  Local  Governing  Bodies ;  the  United  States.  —  4. 
England.  —  5.  France.  —  6.  Prussia.  —  7.  Local  Taxation  ;  the  pro- 
perty tax  of  the  United  States.  —  8.  Systems  of  Local  Taxation  in 
Other  Countries.  —  9.  Reform  of  the  American  System. 

1.  Local  and  Central  Government  Distin- 
guished. Hitherto,  our  discussion  of  the  structure  of 
government  has  been  confined  to  the  consideration  of 
those  governing  bodies  whose  authority  extends  over 
the  whole  state.  But  in  all  but  the  very  smallest  com- 
munities these  are  not  the  sole  organs  of  administration. 
There  exists  in  addition  a  number  of  officials  and  offi- 
cial bodies,  whose  functions  extend  only  over  a  portion 
of  the  total  territorial  ai*ea  of  the  state.  These  bodies, 
and  the  duties  that  they  perform,  are  spoken  of  under 
the  general  designation  of  local  government.  Local 
government,  therefore,  will  refer  to  the  operations  of 
all  township  antl  county  councils,  the  governing  bodies 
of  municipalities,  districts,  etc.  The  common-sense 
meaning  of  the  term  is  quite  clear,  but  the  definition 
of  local  and  central  government,  in  exact,  precise  form, 
is  not  so  easy.  For  it  is  to  be  observed  that  not  all  the 
governing  bodies  whose  i30wer  extends  only  to  a  part 
of  the  state  are  to  be  classed  as  organs  of  local  gov- 
ernment; for  otherwise  this  would  include  the  compo- 


LOCAL  GOVERNMENT  293 

nent  parts  of  a  federal  state,  whicli  is  contrary  to  the 
evident  signification  intended.  The  state  authorities 
of  New  York  or  Massachusetts  are  not  organs  of  local 
government.  Nor  does  the  distinction  lie  in  the  extent 
of  territory  covered,  nor  in  the  number  of  persons 
ruled  over.  The  municipal  government  of  New  York 
or  Boston,  or  the  county  council  of  Lancashire,  exer- 
cises its  authority  over  a  vastly  greater  number  of 
people  than  the  state  of  Nevada ;  on  the  other  hand 
in  extent  of  territory,  the  senates  of  Hamburg  and 
Bremen,  which  are  not  merely  local  governments,  rule 
over  less  territory  than  comes  within  the  sphere  of 
the  council-general  .of  a  French  department.  The  dif- 
ference between  local  and  central  government  is  not 
therefore  a  matter  of  area  or  of  popidation. 

The  distinction  lies  partly  in  their  relative  constitu- 
tional positions,  and  partly  in  the  respective  nature  of 
the  public  services  performed.  In  regard  to  the  first 
point,  it  is  true  of  most  independent  states  that  the  local 
government  derives  its  powers  from  the  central  govern- 
ment, and  holds  them  at  the  pleasure  of  the  latter.  This 
is  the  case,  whether  or  not  there  is  a  written  constitution. 
In  France  and  in  Italy,  each  of  which  has  a  written  con- 
stitution, the  organization  of  the  local  government  is  en- 
tirely under  the  control  of  the  central  parliament.  It  is 
for  this  reason  that  we  do  not  think  of  the  Swiss  can- 
tons or  the  "  states"  of  the  United  States  as  organs  of 
local  government ;  for  these  component  parts  of  a  fed- 
eral system  are,  within  the  sphere  of  their  own  compe- 
tence, quite  independent  of  the  central  federal  author- 
ity. But  the  distinction  thus  made  is  not  universally 
true.  Though  it  applies  to  nearly  all  independent  states, 


294      THE   STRUCTURE   OF  THE   GOVERNMENT 

it  is  not  the  case  with  the  organs  of  local  government 
(townships,  county,  and  municipal  authorities)  in  the 
separate  commonwealths  of  the  United  States.  These 
certainly  are  organs  of  local  government,  and  yet  to  a 
great  extent  they  exist  by  virtue  of  the  state  constitu- 
tion, and  could  not  be  put  out  of  existence  at  the  will 
of  the  state  legislature. 

The  other  point  of  distinction  between  local  and  cen- 
tral government  consists  in  the  different  nature  of  the 
services  accomplished.  This  requires  some  further  ex- 
planation. The  various  functions  performed  by  the 
agencies  of  the  state  for  the  benefit  of  the  citizens  will 
roughly  fall  into  two  classes.  Some  of  them  will  be  in 
the  interest  of  the  community  generally,  and  the  benefit 
thereby  effected  will  not  be  assignable  to  any  single  part 
of  the  country.  For  example,  the  protection  afforded 
by  the  army  and  navy  whereby  foreign  conquest  is  pre- 
vented, is  a  benefit  shared  by  all  the  inhabitants  alike. 
The  same  will  be  true  of  all  the  large  class  of  public 
works,  the  advantage  and  purpose  of  wliich  may  be  said 
to  be  national.  There  will  also  be  a  number  of  regula- 
tive functions  to  be  performed,  —  the  institution  of  the 
criminal  law,  the  control  of  marriage  and  divorce,  law 
regulating  contracts,  sales,  etc.,  all  of  which,  to  be  effec- 
tive, must  be  uniform.  The  whole  class  of  functions  thus 
indicated  will  properly  fall  within  the  province  of  the 
central  government.  But  in  addition  to  these,  there  are 
other  state  activities  (for  it  must  be  recollected  that 
both  local  and  central  government  form  a  part  of  the 
organization  of  the  state)  of  quite  a  different  character. 
Here  the  benefit  to  be  conferred  only  affects  a  small 
portion  of  the  community,  and  is  obviously  assignable  to 


LOCAL  GOVERNMENT  295 

a  particular  area.  The  lighting  of  a  town,  the  erection 
of  a  bridge  over  a  country  road,  the  establishment  of  a 
street-car  system,  are  matters  of  this  sort.  Here  it  seems 
reasonable  that  the  advantage,  the  cost,  and  the  control 
of  the  enterprise  should  be  looked  upon  as  solely  the 
concern  of  those  who  are  affected  by  it. 

Such,  then,  is  the  general  distinction  between  the  du- 
ties of  central  and  local  governments.  The  public  ser- 
•vices  of  the  latter  will  be  found  on  examination  to  refer 
mainly  to  the  maintenance  of  schools,  hospitals,  asylums, 
bridges,  roads,  parks,  etc.,  and  the  management  of  local 
public  utilities,  such  as  lighting  plants,  transportation 
systems.  The  activities  of  local  government  are  thus 
concerned  mainly  with  real  property  in  various  forms  ; 
it  represents  the  collective  activity  of  the  citizens  di- 
rected towards  the  creation  and  control  of  such  tangi- 
ble utilities  (roads,  bridges,  water  supply)  as  are  of 
general  benefit  in  their  particular  area,  and  indivisi- 
ble among  the  separate  citizens.  The  services  thus  per- 
formed may  be  better  understood  by  contrasting  them 
with  such  regulative  legislative  activities  as  the  making 
of  the  criminal  law,  which  belongs  to  the  central  gov- 
ernment. In  spite,  however,  of  the  obvious  nature  of  the 
general  distinction,  the  functions  of  local  and  central 
government  shade  and  blend  into  one  another.  In  some 
cases  what  is  evidently  a  local  matter  as  to  expense  and 
immediate  benefit,  is  yet  in  other  aspects  a  matter  of  gen- 
eral concern.  This  is  seen  in  the  case  of  schools.  It  is 
of  evident  universal  concern  that  all  the  citizens  should 
be  educated,  and  it  is  therefore  within  the  proper  prov- 
ince of  the  central  government  to  make  education  com- 
pulsory, and  to  prescribe  the  general  plan  upon  which 


296      THE  STRUCTURE   OF  THE   GOVERNMENT 

it  shall  be  based.  It  may  also  properly  defray  a  part  of 
the  cost,  leaving  to  the  local  government  the  immediate 
control  and  the  main  part  of  the  cost,  at  least  of  pri- 
mary schools. 

2.  Areas  of  Local  Government ;  the  United 
States,  France,  England.  From  this  general  con- 
sideration of  the  nature  of  local  government,  we  may 
pass  to  some  of  the  special  problems  which  arise  in  its 
construction  and  conduct.  These  we  may  group  under, 
three  heads :  (1)  the  question  of  local  areas,  and  here  we 
shall  have  occasion  to  contrast  the  orderly  "  multiple 
system  "in  use  in  the  United  States  with  the  confusion 
of  the  English  areas ;  (2)  the  composition  of  local  gov- 
erning bodies,  and  their  relation  to  the  central  execu- 
tive, in  connection  with  which  the  centralized  system 
of  France  may  be  compared  with  the  decentralization 
in  England  and  in  America;  (3)  the  question  of  local 
taxation,  involving  an  examination  of  the  American 
property  tax,  and  the  systems  in  use  in  other  places. 

The  institution  of  local  government  everywhere  ne- 
cessitates the  division  of  the  total  territory,  not  only 
into  one  set  of  subordinate  areas,  but  into  several.  In 
the  United  States  we  have  townships  and  counties ; 
in  England  parishes,  districts,  and  counties  (with  other 
divisions)  ;  in  France,  communes,  cantons,  arrondisse- 
ments,  and  departements.  In  the  United  States  and  in 
England  we  have  in  addition  to  these  the  municipal  areas 
occupied  by  town  and  city  governments.  The  reason 
for  having  more  than  one  set  of  divisions  will  be  plain. 
Different  public  utilities  will  naturally  spread  their 
effect  over  areas  of  different  size.  Thus  it  will  require, 
let  us  say,  only  twenty  families  to  support  a  country 


LOCAL   GOVERNMENT  297 

school ;  but  the  same  number  of  families  could  not  with 
advantage  erect  and  maintain  a  lunatic  asylum  for  their 
use.  Nor  presumably  could  a  hospital  or  a  poorhouse  be 
supported  out  of  so  small  an  area.  It  becomes  plain, 
then,  that  local  government  demands  the  making  of 
several  areas  adapted  to  the  respective  "  rarity "  or 
"denseness"  of  the  function  to  be  performed.  But 
for  convenience'  sake  it  will  be  well  to  make  these 
areas  as  few  as  may  be,  and  to  group  together  those 
which  roughly  correspond. 

As  the  basis  of  the  areas  of  local  government,  there 
will  generally  be  found  in  old  countries  such  as  Eng- 
land, France,  or  Prussia,  a  primitive  unit  of  settlement 
whose  history  is  long  antecedent  to  that  of  the  central 
government  itself.  Such  is  the  English  parish,  whose 
ecclesiastical  name  has  superseded  the  original  Saxon 
"  township,"  the  French  commune,  and  the  Prussian 
gemeinde.  In  its  origin  this  represents  the  little  com- 
munity of  neighbors  living  together  in  a  hamlet,  or 
in  adjacent  rural  settlements,  and  conducting  their 
joint  concerns  by  some  form  of  common  management. 
Where  such  exists  it  is  plainly  desirable  to  adopt  it  as 
the  primary  area  of  the  local  government  of  the  modern 
state.  There  is,  however,  this  disadvantage,  that  in  the 
course  of  their  long  history  the  original  parishes,  etc., 
will  have  grown  vastly  different  in  size  and  population. 
In  England,  for  example,  out  of  a  total  of  about  15,000 
parishes,  the  smallest  contains  less  than  fifty  acres,  the 
largest  over  10,000 ;  eleven  parishes  (in  1891)  had  no 
inhabitants,  and  the  most  populous  (Islington)  con- 
tained 319,000  inhabitants.  Similarly  in  France  some 
communes  are  rural  areas  or  mere  hamlets,  while  others 


298      THE   STRUCTURE   OF   THE   GOVERNMENT 

are  great  cities.  In  spite  of  the  distortion  of  area  thus 
occasioned,  it  is  advisable  to  retain  such  historic  areas 
in  the  frame  of  local  government.  For  they  represent 
an  essentially  organic  unit,  and  one  which  offers  al- 
ready a  common  economic  and  social  life  as  a  basis  for 
political  construction.  Above  such  areas  as  these  will 
come  larger  units  (the  counties,  districts,  etc.)  repre- 
senting the  performance  of  public  duties  such  as  road- 
making,  erection  of  poorhouses,  hospitals,  jails,  etc., 
which  demand  a  wider  support  than  that  given  by  the 
smallest  local  community.  The  number  of  gradations 
in  the  ascending  scale  of  local  areas  varies  from  coun- 
try to  country,  and  will  be  best  understood  by  a  brief 
comparative  review  of  the  division  adopted  in  some 
leading  states. 

The  United  States  is  singularly  fortunate  in  the 
configuration  of  its  local  areas.  They  are  in  part 
historic,  and  in  part  deliberately  constructed  prior  to, 
or  at  the  same  time  as,  the  settlement  of  the  land.  The 
towns  (townships)  of  Massachusetts,  for  instance,  and 
the  counties  of  Virginia  may  be  called  historic  or  organic 
areas.  They  represent  the  original  grouping  of  settlers 
in  their  first  occupancy  of  the  colony.  But  one  has  only 
to  glance  at  the  map  of  such  a  state  as  North  Dakota  or 
Kansas  to  see  that  here  the  form  of  the  local  area  has 
been  a  matter  of  deliberate  construction.  The  town- 
ships, the  sections  into  which  they  are  divided,  and  the 
counties  of  which  they  form  a  part,  are  rectangular 
figures  constructed  on  a  common  plan.  But  in  the 
greater  number  of  the  commonwealths  in  the  United 
States,  whether  in  regular  lines  or  not,  we  find  each 
commonwealth  divided  into  townshijos,  which  grouped 


LOCAL   GOVERNMENT  299 

together  make  up  counties.  In  some  states,  as  in  New 
England,  the  townships  have  come  first,  and  the  county 
is  made  up  by  a  subsequent  addition  of  townships ; 
in  the  South  the  reverse  has  been  the  case,  and  the 
original  area  was  the  county,  subdivided  later  to  make 
townships.  In  the  newer  states,  townships  and  counties 
have  been  made  at  the  same  time.  But  the  excellence 
of  the  arrangement  of  the  areas  of  local  government 
in  the  United  States  lies  in  the  fact  that  the  larger 
areas  are  multiples  of  the  smaller  ones  ;  townshij)  lines 
do  not  cross  county  lines.  The  result  is  that  all  the 
inhabitants  of  any  township  belong  to  the  same  county. 
This  will  be  seen  to  have  a  most  important  bearing  on 
the  adjustment  of  local  financial  burdens. 

The  division  of  areas  in  France  is  based,  as  in  the 
United  States,  on  the  multiple  plan.  To  this  general 
scheme,  however,  the  historic  commune  is  a  disturbing 
exception.  There  may  be  several  communes  in  an  ar- 
rondissement  (as  is  generally  the  case,  since  the  total 
communes  number  36,000),  or,  as  in  the  case  of  Paris, 
several  arrondissements  in  a  commune.  But  above  the 
commune  the  areas  fit  into  one  another ;  the  canton 
(which  is  only  an  electoral  and  judicial  district,  and  not 
a  seat  of  government)  is  in  every  case  a  part  of  an  ar- 
rondissement ;  the  latter  itself  is  a  subdivision  of  the 
largest  area,  the  departement.  With  the  exception  again 
of  the  commune,  all  these  areas  represent  deliberate 
construction,  involving  to  some  extent  the  sacrifice  of 
the  historic  division  of  the  country.  They  were  made 
in  1790  by  the  Constituent  Assembly,  the  first  national 
parliament  of  the  French  Revolutionary  era.  This  is 
reflected  in  the  fact  that  the  departments  are  approxi- 


300      THE   STRUCTURE   OF   THE   GOVERNMENT 

mately  of  equal  size.  Some  of  the  more  extreme  construc- 
tionists of  the  epoch  wished  to  subdivide  France  into  a 
number  of  rectangles,  exactly  similar  and  exactly  equal, 
disregarding  at  the  same  time  the  geographical  config- 
uration of  the  country  and  the  historic  associations  of 
provinces,  towns,  and  districts.  This  was  not  done,  how- 
ever, and  the  departments  as  constructed  conform 
pretty  much  to  the  physical  features  of  the  country, 
and  are  named  after  the  mountains,  rivers,  bays,  etc., 
which  they  contain  or  adjoin. 

In  England,  and  indeed  in  the  British  Isles  generally, 
the  utter  confusion  into  which  the  areas  of  local  govern- 
ment had  fallen  has  caused  one  of  the  administrative 
problems  of  the  nineteenth  century.  In  Saxon  times 
the  township,  the  hundred,  and  the  shire  formed  a 
simple  multiple  system  with  local  self-governing  bodies. 
But  the  hundred  fell  into  decay,  the  township  (taking 
its  ecclesiastical  name  of  parish)  became  irregular,  and 
lost  most  of  its  civil  authority,  and  in  place  of  the  local 
self-government  of  township  and  county  was  substi- 
tuted first  the  control  of  the  king's  sheriff,  and  finally 
the  almost  universal  administrative  jurisdiction  of  tlie 
local  justices  of  the  peace.  For  special  purposes  —  the 
care  of  the  poor,  highways,  burial,  sanitation,  schools 
—  special  areas  were  added,  having  little  to  do  with 
parish  or  county  lines,  and  under  a  separate  govern- 
ing body.  The  result  previous  to  the  reforms  to  be 
described  later  was  complete  confusion.  The  situation 
is  thus  described  by  Dr.  William  Odgers,  recorder  of 
Winchester:  ^    "  In  1883  England  and  Wales  were  di- 

^  Local  Government,  1901 ;  an  excellent  book,  which,  however,  refers 
only  to  local  government  in  England. 


LOCAL   GOVERNMENT  301 

vided  for  local-government  purposes  into  the  following 
areas  :  There  were  52  counties,  239  municipal  bor- 
oughs, 70  improvement-act  districts,  1006  urban  san- 
itary districts,  41  port  sanitary  authorities  and  577 
rural  sanitary  districts,  2051  school  board  districts, 
649  unions,  194  lighting  and  watching  districts, 
14,946  poor-law  parishes,  5064  highway  paiushes,  not 
included  in  urban  or  highway  districts,  and  about  13,000 
ecclesiastical  parishes.  The  total  number  of  local  author- 
ities who  then  taxed  the  English  rate-payer  was  27,069, 
and  they  taxed  him  by  means  of  18  different  rates." 
With  one  trifling  exception,  "  all  the  various  areas  in- 
tersected and  overlapped  each  other."  The  means  that 
have  recently  been  taken  to  rectify  the  entanglement 
thus  occasioned  will  form  the  subject  of  a  later  para- 
graph. 

3.  Composition  and  Powers  of  Local  G-overn- 
ing  Bodies ;  the  United  States.  Let  us  now  consider 
the  composition  and  powers  of  local  governing  bodies, 
and  their  relation  to  the  central  authority.  Here  we 
may  distinguish  two  broadly  contrasted  methods  of  con- 
struction. The  one  is  the  system  of  decentralization, 
or  local  autonomy.  By  this  the  control  of  local  affairs 
is  vested  in  a  set  of  officials,  elected  by  the  people  of 
the  locality  itself.  Subject  to  certain  general  regula- 
tions which  proceed  either  from  the  central  authority 
or  from  the  constituent  power  (expressed  in  a  written 
constitution)  which  is  behind  both  the  central  and  the 
local  organization,  the  fullest  latitude  is  given  to  the 
citizens  of  the  locality  in  the  management  of  their 
public  affairs.  The  other  system  is  that  of  centraliza- 
tion.   Here  the  management  of  local  affairs  is  largely 


302      THE   STRUCTURE   OF  THE   GOVERNMENT 

controlled  by  a  set  of  officials  appointed  by  the  central 
government.  The  former  system  prevails  in  complete 
form  in  the  United  States,  and  to  a  slightly  less  degree 
in  England.  The  latter,  or  centralized  system,  is  in 
nse  in  France.  In  the  kingdom  of  Prussia,  something 
of  a  combination  of  the  two  has  been  put  into  practice. 
A  hv'iei  review  of  the  governing  bodies  thus  established 
in  the  different  countries  will  help  us  to  a  judgment 
as  to  the  peculiar  political  purposes  and  the  relative 
merits  of  the  two  systems. 

In  the  United  States,  both  in  the  North  and  South 
and  in  the  new  states,  local  autonomy  prevails.  The 
form  which  it  assumes  differs,  however,  to  some  extent. 
In  the  New  England  states  the  primary  area  of  local 
government  is  the  historic  "  town  "  or  township,  origi- 
nally formed  by  the  joint  settlement  of  a  group  of 
emigrants.  Its  government  has  alread^^  been  referred 
to  in  connection  with  direct  legislation  in  a  preceding 
chapter.  The  original  organ  of  its  government  is  the 
mass  meeting  of  the  qualified  voters,  called  the  town 
meeting.  In  places  that  have  grown  too  populous  for 
such  a  form  of  government,  the  town  meeting  is  re- 
placed by  elected  municipal  government,  —  in  Massa- 
chusetts, for  example,  towns  of  over  twelve  thousand 
inhabitants  are  erected  into  municipalities.  But  in  less 
populous  areas,  the  town  meeting  still  exists.  It  is  held 
once  a  year  (with  extra  sessions,  if  necessary),  usually 
in  the  spring,  though  in  Connecticut  the  regular  meet- 
ing is  in  the  autumn.  Its  business  is  to  elect  the  officers 
of  the  township  for  the  ensuing  year,  to  vote  on  the 
prospective  expenditure  of  money,  and  tlie  basis  of  its 
assessment,  and  other  local  matters  that  may  be  brought 


LOCAL  GOVERNMENT  303 

before  it.  When  the  town  meeting  is  not  in  session,  its 
authority  passes  to  the  officers  whom  it  has  elected. 
These  are  the  group  of  selectmen,  varying  from  three 
to  nine  in  number ;  the  town  clerk,  who  keeps  its  rec- 
ords ;  the  treasurer  and  the  assessors,  who  are  en- 
trusted with  the  important  duty  of  setting  a  value  on 
the  property  of  the  township  for  the  collection  of  taxes ; 
in  addition  to  these  are  a  collector  of  taxes,  school- 
committee  men,  and  minor  officers.  This  system,  it  will 
be  seen,  erects  the  township  into  a  complete  local  de- 
mocracy, a  republic  within  a  re23ublic,  as  it  were.  The 
authority  of  the  superior  officials  of  the  state  over  the 
affairs  of  the  township  is  reduced  to  a  minimum.  It 
must  be  recollected,  of  course,  that  under  the  Ameri- 
can system,  the  state  constitution  itself  acts  as  a  check 
upon  the  power  of  the  local  authorities,  prescribing 
the  limits  of  their  authority,  often  laying  down  the 
maximum  of  their  taxing  power,  and  the  form  of  taxa- 
tion which  they  are  authorized  to  use.  If  they  exceed 
their  legitimate  powers,  the  usual  method  of  judicial 
redress  through  the  courts  can  be  brought  into  play. 
The  area  superior  to  this,  the  county,  is  in  New  Eng- 
land merely  a  grouping  of  townships,  whose  governing 
authority  is  an  elected  body,  the  functions  of  which 
are  very  restricted.  In  Massachusetts  there  are  three 
commissioners,  one  elected  each  year,  and  serving  for 
three  years.  Their  duties  consist  in  apportioning  taxes 
for  county  purposes  among  the  towns  according  to  the 
system  discussed  later,  in  erecting  and  looking  after 
county  buildings,  and  maintaining  county  roads,  in  is- 
suing licenses,  etc. 

In   the   South  the  position  of  county  and  town  is 


304      THE  STRUCTURE  OF  THE   GOVERNMENT 

reversed.  The  county  is  the  historic  area,  originally 
used  for  judicial  purposes,  and  extended  in  use,  later, 
to  other  administrative  functions.  The  township  repre- 
sents a  subsequent  subdivision  of  the  county,  especially 
for  the  purpose  of  maintaining  primary  schools.  But 
in  some  states  the  county  exists  alone,  without  the 
township.  The  organization  of  the  Southern  county  is 
based  on  local  autonomy.  At  its  head  is  the  elected 
board  of  county  commissioners,  with  whom  are  asso- 
ciated a  treasurer,  superintendents  of  the  poor  and  of 
education,  sheriif,  and  other  officers.  Where  no  town- 
ship exists,  the  commissioners  of  the  county  conduct 
the  whole  local  administration  (roads,  poorhouses,  jails, 
etc.) ;  where  the  township  has  been  introduced,  the 
things  handed  over  to  its  elected  officers  vary  very 
much. 

In  the  central  Atlantic  states,  and  to  the  west  of  the 
Alleghanies,  we  no  longer  find  either  township  or 
county  assuming  the  same  preponderant  position  as  in 
New  England  or  the  South.  Both  township  and  county 
exist,  governed  by  officers  elected  by  the  people,  and 
dividing  the  local  government  between  them  according 
to  the  nature  of  the  service  to  be  performed.  Some- 
times the  one  and  sometimes  the  other  has  been 
historically  antecedent.  In  New  York,  Pennsylvania, 
Delaware,  and  New  Jersey,  the  township  was  the  origi- 
nal area,  an  organic  unit  based  on  settlement.  For 
this  reason  we  still  find  the  annual  town  meeting  in 
rural  New  York,  presided  over  by  the  jvistice  of  the 
peace,  electing  officers,  passing  by-laws,  and  voting 
taxes.  But  in  the  central  Atlantic  states  the  existence 
of  a  larger  and   artificial  area  in   the   shape   of   the 


LOCAL   GOVERNMENT  305 

"  riding,"  acted  as  the  starting-point  for  the  introduc- 
tion of  county  government.  In  the  northwestern  states 
the  county  has  generally  preceded  the  township.  In 
Illinois,  most  of  whose  Southern  settlers  in  early  times 
came  from  Virginia,  the  county  was  first  introduced. 
But  here,  as  in  a  great  many  other  states,  the  needs  of 
school  regulation  served  to  introduce  township  govern- 
ment. By  the  system  of  surveys  made  by  authority  of 
Congress  (beginning  with  the  land  ordinance  of  1785), 
the  land  in  all  new  territory  has  been  cut  up  into 
squares  six  miles  each  way,  and  thus  containing  thirty- 
six  square  miles.  One  square  mile  in  each  has  been 
devoted  by  the  national  government  to  the  maintenance 
of  public  schools.  It  has  thus  happened  that  in  many 
cases  the  word  "  township  "  was  first  used  merely  as 
the  designation  of  the  tract  of  land  six  miles  square. 
Later  on,  as  settlement  gi-ew,  the  election  of  officers 
for  the  public  business  of  the  township  naturally  fol- 
lowed. But  in  other  states  the  township,  though  the 
county  has  existed  side  by  side  with  it,  has  been  from 
the  first  the  chief  area  of  local  government.  This  has 
happened  in  Michigan,  whose  first  settlers  came  from 
New  England,  and  transplanted  their  local  institutions. 
The  town  meeting  is  in  use  in  Michigan  almost  in  the 
same  way  as  in  Massachusetts.  Within  the  township 
itself  there  is  often  found  as  a  subordinate  area  the 
school  district,  with  separate  elected  officers  (trustees, 
directors,  etc.),  who  appoint  teachei's,  supervise  the  ex- 
penditure of  money  on  buildings,  etc.  But  this  is  not 
universal,  as  in  many  places  —  in  Massachusetts  and 
Pennsylvania,  for  example  —  the  school  district  is 
amalgamated  with  the  township. 


306      THE   STRUCTURE   OF   THE   GOVERNMENT 

The  above  are  the  only  organs  of  government  that 
operate  in  the  rural  parts  of  the  country.  But  there 
are,  in  addition  to  these,  the  urban  organizations  (cities, 
towns,  villages,  and  —  in  Pennsylvania  —  boroughs) ; 
the  exact  form  of  government  varies  from  state  to 
state.  Cities  and  towns,  etc.,  are  sometimes  organized 
by  virtue  of  a  general  statute  or  constitutional  pro- 
vision, which  makes  it  possible  for  any  locality  having 
a  certain  population  to  adopt  a  municipal  government. 
Sometimes  their  form  of  administration  is  given  to 
them  by  a  special  act  of  the  legislature.  It  may 
approximately  be  said  that  the  latter  is  the  case  in 
regard  to  the  larger  cities,  the  smaller  ones  coming 
under  a  general  law.  In  all  cases  the  government  is 
democratic  and  autonomous.  The  control  of  the  city  is 
in  the  hands  of  officers  elected  by  the  qualified  voters 
among  its  inhabitants,  or,  if  not  directly  elected,  at  any 
rate  appointed  by  some  one  else  who  is  himself  elected. 
In  some  states  (Virginia)  the  city  government  excludes 
the  county ;  in  others  the  county  remains,  forming  a 
part  of  the  city,  or  including  the  city  as  part  of  itself. 
The  government  of  an  American  city  resembles  in  its 
structure  that  of  one  of  the  states.  At  its  head  is  an 
elected  mayor,  as  chief  executive  officer,  with  a  large 
number  of  subordinates,  partly  elected,  partly  ap- 
pointed. There  is,  in  addition,  a  legislative  or  quasi- 
legislative  body  in  the  form  of  the  city  council,  gener- 
ally made  up  of  two  different  sets  of  members  —  the 
aldermen  and  the  councilors  —  who  are  elected  for 
different  terms  and  different  districts.  The  earlier  ten- 
dency, which  originated  in  the  prevalent  belief  in  the 
omniscience  of  any  legislative  body  and  a  distrust  of 


LOCAL  GOVERNMENT  307 

executive  officers,  was  to  place  the  bulk  of  the  authority 
in  the  hands  of  the  council,  and  to  give  the  mayor  as 
little  discretionary  power  as  possible.  The  change  of 
public  opinion  in  this  respect  (already  referred  to  in  a 
preceding  chapter)  has  caused  a  contrary  policy.  The 
concentration  of  authority  in  the  hands  of  one  man, 
rather  than  of  a  whole  body,  carries  with  it  a  definite 
location  of  responsibility.  One  man,  conspicuous  by 
the  isolation  of  his  office,  aware  that  he  alone  is  an- 
swerable, and  that  the  blame  of  negligence  cannot  be 
shifted,  and  having  at  the  same  time  the  power  to  act 
unhampered  by  idle  discussion,  is  more  likely  to  prove 
efficient  than  a  committee  whose  members  can  shift  to 
one  another's  shoulders  the  blame  of  their  joint  mis- 
deeds. In  Boston,  for  example,  the  administration  is 
vested  in  a  mayor  elected  for  two  years,  and  in  a  city 
council  composed  of  two  houses,  —  an  upper  house  of 
thirteen  aldermen,  and  a  lower  house  of  seventy-five 
councilmen.  Of  the  subordinate  officials,  the  street 
commissioners  are  the  only  ones  elected  by  the  people. 
Some  few  of  the  rest  are  appointed  by  the  council,  and 
the  police  board  by  the  government  of  Massachusetts, 
but  the  great  bulk  of  appointments  to  city  offices  are 
made  by  the  mayor.  In  some  cases  the  ratification  of 
the  aldermen  is  required.  By  the  charter  of  greater  New 
York,  amended  in  1901,  the  city  government  centres  in 
a  mayor,  elected  for  two  years,  and  a  board  of  seventy- 
three  aldermen,  elected  for  the  same  term.  The  mayor 
has  very  great  power.  He  can  absolutely  veto  any  grant 
of  a  city  franchise,  and  has  a  partial  veto  over  ordinary 
legislative  acts  of  the  board  of  aldermen.  He  appoints 
the  heads  of  fourteen  out  of  the  fifteen  administrative 


308      THE   STRUCTURE   OF  THE  GOVERNMENT 

departments  (fire,  education,  water  supply,  etc.),  and 
has  power  to  remove  most  of  them.  He  appoints,  also, 
the  civil  service  commissioners.  Each  of  the  separate 
boroughs  of  greater  New  York  has  its  president,  who 
controls  the  street  paving,  the  sewers,  etc.^ 

The  most  important  of  all  questions  in  connection 
with  city  government  is  not  its  construction  but  the 
scope  of  its  operation,  the  kind  of  public  services  which 
it  is  to  undertake,  whether  or  not  it  shall  operate  its 
own  lighting  plant,  car  service,  etc.  But  the  consider- 
ation of  this  topic  will  fall  under  a  later  chapter. 

4.  England.  The  distinctive  feature  of  American 
local  government  has  been  seen  to  be  the  great  extent 
to  which  autonomy,  or  self-government,  prevails.  The 
same  feature  is  to  be  observed  in  the  local  government 
of  England,  as  recently  reconstructed ;  but  previous  to 
the  reconstruction  acts  of  the  last  half  of  the  nineteenth 
century,  this  was  not  the  case.  The  greater  part  of  local 
jurisdiction  had  been  placed,  not  all  at  once  but  bit  by 
bit,  in  the  hands  of  the  justices  of  the  peace.  The  func- 
tions of  these  officials  had  become  so  numerous  as  to 
defy  anything  but  a  purely  alphabetical  enumeration  ; 
they  included  such  important  matters  as  the  levy  of 
the  county  rate,  the  issuing  of  liquor  licenses,  the  con- 
duct of  asylums,  and  the  supervision  of  prisons.  In 
their  judicial  capacity  these  officials  tried  criminal 
cases.  The  justice  of  the  peace,  appointed  by  the 
crown,  on  the  advice  of  the  lord  lieutenant  of  the 
county,  did  not  represent  the  principle  of  local  self- 
government.   He  was  the  nominee  of  the  central  gov- 

1  D.  B.  Eaton's  Government  of  Municipalities  is  a  standard  work 
upon  the  subject  of  city  government. 


LOCAL  GOVERNMENT  309 

ernment,  and  in  many  cases  was  acting  as  the  agent  of 
one  of  its  departments,  of  the  local  government  board, 
the  board  of  trade,  etc.  In  addition  to  the  justices, 
various  special  bodies  had  been  created  in  the  course 
of  the  nineteenth  century,  occupying  some  of  the  con- 
flicting areas  already  mentioned.  The  board  of  guar- 
dians (by  the  poor  law  amendment  act  of  1834)  had 
control  of  the  care  of  the  poor  in  a  "  union  "  of  par- 
ishes, the  board  being  composed  of  the  local  justices  to- 
gether with  elected  members.  The  burial  acts  (1852 
and  others)  constituted  burial  boards,  elective  bodies 
operative  over  a  parish  or  larger  districts.  Finally 
there  were  added,  in  1870,  school  districts,  with  elec- 
tive school  boards.  The  parish  itself  remained  as  an  ec- 
clesiastical area,  but  exercised  also  through  its  officials, 
or  through  its  general  vestry  meeting,  minor  civil  func- 
tions. These  and  other  bodies  made  up  a  medley  of  au- 
thorities, whose  areas  of  jurisdiction  were  inextricably 
confused,  and  whose  composition  gave  but  little  scope 
to  local  self -governance.  The  government  of  cities  and 
towns  which  had  grown  up  under  special  charters,  and 
was  often  in  the  hands  of  a  small  portion  of  the  inhab- 
itants (sometimes  of  a  close  corporation),  was  also 
hopelessly  confused  and  hopelessly  at  variance  with  any 
principle  of  popular  government. 

Though  much  of  the  older  confusion,  at  least  as 
viewed  by  an  American,  remains,  a  great  deal  has  been 
done  to  place  local  government  in  England  upon  a 
more  reputable  footing.  Two  main  objects  have  been 
kept  in  view,  —  the  rectification  of  areas  and  the  intro- 
duction of  local  self-government.  With  this  object,  a 
series  of  reforming  acts  has  been  passed  :  the  munici- 


310      THE   STRUCTURE   OF   THE   GOVERNMENT 

pal  corporation  acts  of  1835  and  1882,  the  local  govern- 
ment act  of  1888  (referring  mainly  to  county  govern- 
ment), the  local  government  act  of  1894  (for  parishes 
and  districts),  the  London  government  act  of  1899,  and 
the  education  act  of  1902.  The  general  effect  of  the 
reform  is  as  follows.  The  justice  of  the  peace  is  rele- 
gated to  his  judicial  sphere,  retaining  but  few  of  his 
administrative  functions.  The  old  Saxon  system  of 
three  ascending  areas  with  elective  self-government 
(township,  hundred,  and  county)  reappears  in  the 
present  parish,  district,  and  county.  To  the  county  is 
given  an  elected  council,  with  wide  range  of  local  power. 
The  elected  district  council  has  authority  over  sanita- 
tion, allotments,  certain  licenses,  and  other  things.  The 
parishes  inside  the  area  of  towns  are  not  affected  by 
the  reform,  but  the  rural  parishes  have  now  elective 
self-government.  If  the  parish  has  less  than  three 
hundred  inhabitants,  it  exercises  its  government  by 
means  of  a  general  "  parish  meeting,"  on  the  lines  of 
the  American  town  meeting,  but  with  much  less  author- 
ity, for  the  sphere  of  parish  operations  is  small.  In 
the  larger  parishes  councils  are  elected.  The  school 
district  under  the  act  of  1902  disappears,  and  the  con- 
trol of  schools  is  vested  in  a  committee  of  the  county 
council,  having  as  a  subordinate  authority  a  body  of 
managers  for  each  school.^  The  reforms  also  intro- 
duce elective  self-government  into  the  cities  and  towns, 

^  The  violent  opposition  to  the  act  arose  not  from  this  aspect  of  its 
provisions,  but  from  the  fact  that,  in  unifying  the  church  schools  with 
the  hoard  schools,  it  contrived  to  allow  the  former  to  get  a  share  of 
the  proceeds  of  local  taxation.  It  amounted  therefore,  in  the  eyes  of 
its  adversaries,  to  a  device  for  making  rate-payers  of  all  denominations 
contribute  to  the  support  of  the  schools  of  the  Church  of  England. 


LOCAL  GOVERNMENT  311 

in  the  shape  of  mayor,  aldermen,  and  councilors ;  but 
the  relation  of  the  cities  to  the  counties  in  which  they 
lie  is  not  always  the  same.  Some  are  administrative 
counties  (Southampton,  etc.),  or  are  "  county  boroughs  " 
(Liverpool,  Manchester,  and  about  sixty  others),  and 
stand  quite  apart  from  the  county  government.  Below 
these  are  graded  classes,  which  fall  to  an  increasing 
extent  within  the  regulation  of  the  county  authori- 
ties. London  stands  by  itself.  It  contains  within  it  the 
small  central  portion  (about  one  mile  square)  known 
as  the  city  of  London,  and  governed  as  before  by  the 
lord  mayor  and  the  "  courts "  of  which  he  is  presi- 
dent, the  court  of  common  council  (composed  of  alder- 
men and  councilors)  being  the  chief.  Outside  of  this 
lies  the  vast  "  county  of  London  "  (with  a  population 
of  4,433,000  in  the  census  of  1896),  under  the  control 
of  an  elected  county  council.  This  whole  area  (except 
the  city)  is  subdivided  into  twenty-eight  "  metropoli- 
tan boroughs,"  each  with  an  elected  council.  The  re- 
sult of  these  various  reforms  is  that  throughout  the 
whole  system  the  central  government  has  withdrawn 
from  its  former  control,  in  favor  of  the  autonomy  of 
elected  local  authorities.  Such  management  as  it  still 
retains  is  in  the  hands  of  the  local  government  board, 
a  body  consisting  of  a  president  (who  is  a  member  of 
the  cabinet,  and  who  is  the  acting  power)  and  other 
cabinet  officers,  nominally  associated  with  him.  But 
the  duties  of  the  board  consist  merely  in  supervision  ; 
it  does  not  appoint  local  officials,  and  its  chief  function 
of  importance  is  to  sanction  financial  measures  of  the 
subordinate  authorities. 

5.   France,   In   France  local  government   assumes 


312      THE   STRUCTURE   OF   THE  GOVERNMENT 

an  entirely  different  character  from  that  found  in 
America  and  England.  The  distinguishing  feature  is 
its  highly  centralized  form,  and  the  great  degree  of 
dependence  in  which  all  local  authorities  are  placed  in 
regard  to  the  central  national  government.  Take  for 
instance  the  administration  of  a  French  department, 
the  largest  of  the  local  areas.  At  its  head  is  the  pre- 
fect, an  official  appointed  by  the  president  of  the  re- 
public, on  the  recommendation  of  the  minister  of  the 
interior.  Pie  has  associated  with  him,  it  is  true,  an 
elected  body  known  as  the  general  council  of  the  de- 
partment. But  the  power  of  the  latter  is  reduced  to 
the  smallest  compass.  It  is  allowed  by  law  only  two 
regular  annual  sessions,  the  one  of  fifteen  days,  the 
other  of  a  month.  It  has  no  true  taxing  power,  for  the 
amount  of  money  which  it  may  use  and  the  manner  of 
raising  it  are  both  regulated  by  the  French  parlia- 
ment. In  the  spending  of  the  money  thus  accruing  to 
it,  it  does  not  act  on  its  own  initiative,  for  it  is  the 
prefect  who  draws  up  the  budget  which  is  annually 
submitted  to  it.  Even  then  the  expenditure  as  finally 
voted  requires  the  assent  of  the  president  of  the  re- 
public. The  latter  has  also  the  power  to  dissolve  the 
council,  a  power  which  may  be  exercised  even  by  the 
prefect  if  the  council  outsits  its  statutory  term.  If  it 
exceeds  the  scope  of  its  legal  competence,  its  acts  can 
be  declared  void  by  the  president.  Its  members  are 
unpaid,  their  attendance  is  compulsory,  they  are  for- 
bidden to  adopt  any  resolutions,  etc.,  bearing  upon  gen- 
eral politics,  nor  can  a  council  enter  into  any  political 
correspondence  or  relations  with  that  of  any  other  de- 
partment.  In  contrast  to  this  the  power  of  the  prefect 


LOCAL  GOVERNMENT  313 

is  very  great.  At  times,  indeed,  he  merely  acts  as  the 
agent  of  the  general  government,  with  no  discretion  of 
his  own,  as  when  enacting  the  ordinances  of  the  presi- 
dent. But  in  addition  to  this,  and  to  the  duties  in  con- 
nection with  the  council  already  explained,  the  prefect 
has  a  wide  sphere  of  authority.  He  appoints  and  dis- 
misses the  teachers  in  the  government  schools,  is  at 
the  head  of  the  police,  is  recruiting  officer,  etc.  The 
same  system  on  a  smaller  scale  is  adopted  in  the  arron- 
dissement,  the  first  subdivision  of  the  department.  At 
its  head  is  a  sub-prefect,  appointed  by  the  president ; 
the  functions  of  its  council  amount  to  little  more  than 
the  division  of  apportioned  taxes  among  the  communes. 
The  primary  unit,  the  commune,  is  in  a  slightly  less 
dependent  position.  Being  organic  and  historic,  and 
not  merely  "  geometrical,"  as  are  the  superior  units,  it 
tends  to  develop  a  greater  vitality.  Its  mayor  (since 
1882)  is  an  elected  officer.  But  its  municipal  council, 
like  that  of  the  department,  has  restricted  powers  and 
very  limited  sessions.^  It  is  subject  to  dissolution  by 
the  president,  and  can  be  suspended  for  a  month  by 
the  prefect.  All  French  towns  and  cities  except  Paris 
and  Lyons,  which  have  a  special  form  of  government, 
are  organized  as  communes  on  the  same  plan. 

The  peculiar  form  which  local  government  has  thus 
assumed  in  France  has  grown  out  of  the  troubled  his- 
tory of  the  country  since  the  Revolution.  At  the  mak- 
ing of  the  first  constitution  of  that  era  (the  monarchi- 

^  Full  details  in  reference  to  the  organization  of  local  government 
in  France  may  be  found  in  Ducrocq,  Cours  de  Droit  Administratif, 
vol.  i ;  and  in  Simonet,  Traiti  EUmentaire  du  Droit  Public  et  Admini- 
stratif. 


314      THE  STRUCTURE  OF  THE  GOVERNMENT 

cal  constitution  adopted  in  1791)  the  reformers  were 
fully  insj)ired  with  the  idea  of  local  autonomy.  The 
departments  were  erected  into  what  were  described 
as  "  little  republics,"  and  the  power  centred  in  their 
"  councils  general "  was  very  considerable.  Such  an 
arrangement  made  at  such  a  time  served  only  to 
weaken  the  authority  of  the  central  executive  at  Paris 
to  an  alarming  degree.  Under  the  revolutionary 
government  of  the  Terrorists,  therefore,  in  1793-94, 
local  power  was  put  into  the  hands  of  "  national 
agents,"  appointed  from  Paris,  and  of  special  "  repre- 
sentatives on  mission,"  who  exercised  a  dictatorial 
power.  The  intense  centralization  thus  effected  ren- 
dered it  possible  for  the  executive  government  to  avail 
themselves  of  the  whole  resources  of  the  nation  with 
wonderful  effect.  The  same  plan  was  deliberately 
adopted  and  perfected  by  Bonaparte  under  the  consti- 
tution of  the  year  VIII  (law  of  Feb.  17,  1800),  in  which 
the  prefects  and  sub-prefects  appear,  and  which  has  since 
remained  as  the  basis  of  local  government  in  France. 
The  struggle  between  different  dynasties  and  parties 
for  the  control  of  the  national  government,  and  the 
successive  revolutions  (1830, 1848, 1851, 1870)  in  which 
the  struggle  has  culminated,  have  made  each  party 
willing  to  adopt  the  centralized  system  as  a  means  of 
consolidating  its  own  power.  This  has  contributed 
largely  to  give  to  Paris  a  political  preeminence  not 
enjoyed  by  any  other  capital.  For  the  purposes  of 
revolution,  Paris  during  the  nineteenth  century  meant 
France,  and  the  successful  seizure  of  the  central  control 
carried  with  it  the  mastery  of  the  entire  government. 
The  efficiency  of  this  concentration  of  power  in  time 


LOCAL   GOVERNMENT  315 

of  war  or  invasion  is  very  great ;  it  insures  a  prompt 
cooperation  from  all  parts  of  the  country.  But  as 
against  this  must  be  set  the  enervating  influence  on 
local  affairs  of  government  from  above,  and  the  temp- 
tation of  the  central  government  to  use  its  agents  for 
political  purposes. 

6.  Prussia.  The  system  of  local  government  in 
Prussia  is  far  too  complex  to  allow  of  any  adequate 
description  in  brief  compass.  The  areas  are  numerous 
(provinces,  districts,  circles,  communes,  and  organ- 
ized towns).  It  contains,  however,  one  interesting  fea- 
ture, which  may  be  noticed  in  passing.  As  a  compro- 
mise between  state  control  and  local  self-government, 
there  is  in  use  in  the  Prussian  provinces  a  double  set 
of  officials,  a  president  and  council  appointed  by  the 
crown,  and  a  provincial  diet  elected  by  the  represent- 
ative bodies  in  the  circles  and  choosing  its  own  exec- 
utive head  (Landeshauptmann)  and  executive  com- 
mittee. The  spheres  of  state  authorities  and  provincial 
elective  authorities  are  kept  separate,  the  former  being 
mainly  concerned  with  supplying  information  to,  and 
acting  as  the  agent  of,  the  royal  government  at  Berlin. 
The  functionaries  of  the  Prussian  district  are  all  nom- 
inated by  the  central  government ;  of  those  of  the  cir- 
cle, the  executive  chief  is  appointed  by  the  president 
of  the  province,  the  diet  is  elective.  In  rural  com- 
munes there  are  elective  assemblies,  but  there  remain 
still  communes,  if  one  may  use  the  term  to  translate 
the  word  Rittergut,  that  are  under  the  jurisdiction  of 
a  manorial  lord.  The  towns  and  cities  are  variously 
organized  on  the  elective  plan.  But  it  must  be  recalled 
that  the  elective  system  in  Prussia  is  always  arranged 


316      THE   STRUCTURE   OF  THE   GOVERNMENT 

on  the  division  of  classes  described  in  an  earlier  chap- 
ter. The  central  government  retains  a  supervising 
power  over  financial  measures.  The  Prussian  system 
of  combining  local  authority  with  central  control  would 
prove  quite  impossible  in  America,  owing  to  the  con- 
flict of  jurisdiction  it  would  occasion  ;  in  Prussia  such 
conflict  is  less  to  be  feared,  because  it  is  a  matter  con- 
trolled, as  already  explained  in  reference  to  France,  by 
the  administrative  oflicers  themselves. 

7.  Local  Taxation;  the  Property  Tax  of  the 
United  States.  We  come  now  finally  to  the  diflicult 
question  of  local  taxation  and  finance.  In  the  United 
States  local  taxation  has  proved  one  of  the  most  seri- 
ous of  the  practical  problems  of  administration.  The 
peculiar  difficulty  which  has  arisen  to  a  greater  or  less 
degree  all  over  the  Union  is  of  the  following  character. 
The  state,  county,  and  township  authorities  draw  a  very 
large  proportion,  in  the  case  of  the  two  latter  practically 
all,  of  their  financial  support  from  the  proceeds  of  a 
direct  tax  laid  on  all  forms  of  property.  The  tax  ap- 
plies both  to  real  and  personal  property,  —  land,  houses, 
buildings,  horses,  carriages,  furniture,  stock  and  shares, 
mortgages,  bonds,  etc.  At  its  origination  it  seemed 
eminently  reasonable.  The  states  were  forbidden  to 
levy  import  and  export  duties,  and  to  levy  excise  duties 
would  tend  to  drive  out  manufactures  to  a  more  fa- 
vored locality ;  they  therefore  of  necessity  fell  back 
on  direct  taxes.  And  of  all  such,  a  single  tax,  laid  on 
all  forms  of  property  alike,  seemed  to  commend  itself 
as  the  most  uniform  and  the  most  equitable.  In  prac- 
tice it  has  shown  itself  to  be  distressingly  inequitable. 
This  is  due  in  part  to  the  manner  of  its  assessment, 


LOCAL  GOVERNMENT  317 

which  is  made  as  follows.  The  state  authorities  com- 
pute the  amount  of  the  direct  tax  needed  for  their  pur- 
poses, and  divide  it  up  among  the  counties  in  the 
proportion  of  the  value  of  assessed  property  in  each. 
To  the  sum  thus  called  for  each  county  adds  the  amount 
needed  for  its  own  use  and  then  distributes  it  in  like 
manner  among  its  townships,  again  according  to  the 
proportional  value  of  the  assessed  property  in  each. 
To  this  smn  the  township  adds  what  is  needed  for  its 
own  purposes,  usually  the  largest  amount  of  all.  The 
total  thus  reached  is  distributed  among  all  the  property- 
holders  of  the  township  according  to  their  proportion  of 
assessed  property ;  in  other  words  the  total  of  the  as- 
sessed property  is  divided  by  the  total  tax  to  be  collected, 
and  a  tax  rate  is  thus  obtained  which  is  levied  on  all 
the  property.  If,  for  example,  the  total  of  the  property 
was  worth  $5,000,000,  and  the  total  tax  to  be  collected 
was  $100,000,  then  the  tax  rate  would  be  put  at  one 
fiftieth  or  two  per  cent.  Under  such  a  system,  then, 
everything  turns  on  the  assessment.  If  one  county  has 
been  assessed  for  very  much  less  property  than  it  actu- 
ally has,  then  the  amount  of  the  tax  assigned  to  it  by  the 
state  will  be  very  much  less  than  it  should  be,  but  at 
the  expense  of  the  other  counties,  for  the  rate  all  round 
will  need  to  be  higher  in  order  to  supply  the  fixed 
quantity  of  money  asked  for.  Or  again  let  us  suj^pose 
that  in  one  of  the  townships  the  property  is  assessed  for 
very  much  less  than  it  is  worth.  Then  the  township  in 
which  the  assessment  is  too  low  is  given  less  than  its 
share  of  the  county  tax,  but  always  at  the  expense  of 
the  other  townships,  on  account  of  the  rate  being  of 
necessity  higher  than  would  be  needed  if  the  assess- 


318      THE   STRUCTURE   OF  THE  GOVERNMENT 

ment  were  larger.  Finally,  within  the  township  itself 
precisely  the  same  thing  happens  among  individuals. 
Any  one  whose  property  is  put  at  too  low  a  valuation, 
or  not  valued  at  all,  escapes  at  the  expense  of  his 
neighbors;  and  the  more  the  property  in  general 
escapes  assessment  and  remains  invisible,  the  higher 
becomes  the  tax  rate.  Hence  has  arisen  what  is  called 
competitive  under-assessment,  the  counties  and  town- 
ships vying  with  one  another  in  attempting  to  make 
their  findable  property  as  small  as  possible.  The  as- 
sessors, moreover,  being  elective  officers,  elected  in  most 
cases  for  a  very  short  term,  are  personally  interested 
in  not  making  the  total  property  of  their  area  stand  at 
too  high  a  figure. 

The  upshot  has  been  that  while  the  system  was  origi- 
nally devised  as  the  most  equitable  form  of  universal 
taxation  possible,  in  its  actual  operation  nothing  could 
be  more  vicious  and  inequitable.  For  it  is  to  be  ob- 
served that  it  in  reality  discriminates  most  unfairly  be- 
tween different  kinds  of  property.  Real  estate,  for  ex- 
ample (lands  and  buildings),  is  much  less  easy  to  conceal 
than  such  forms  of  property  as  shares  in  bank  stock, 
bonds,  debentures,  etc.  In  illustration  of  this  it  may  be 
mentioned  that  in  the  assessment  of  property  in  Brook- 
lyn in  1895,  real  estate  constituted  over  ninety-eight  per 
cent  of  the  total  values.  Some  years  ago  (1884)  a  tax 
commission  in  West  Virginia  reported  in  reference  to 
personal  property,  "  Things  have  come  to  such  a  con- 
dition in  West  Virginia,  that  as  regards  paying  taxes  on 
this  class  of  property,  it  is  almost  as  voluntary,  and  is 
considered  pretty  much  in  the  same  light,  as  donations 
to  the  neighboring  church  or  Sunday  school."    In  ad- 


LOCAL   GOVERNMENT  319 

dition  to  this,  a  premium  is  put  upon  dishonesty,  since 
people  of  a  pliable  conscience  will  find  it  easier  to 
dodge  the  assessment  than  those  of  a  more  uncompro- 
mising morality.  Even  some  of  the  measures  intended 
to  prevent  this,  as,  for  example,  the  adoption  of  a  sched- 
ule of  property  made  out  and  sworn  to  by  the  owner, 
and  the  penalties  (legal  and  spiritual)  for  perjury,  etc., 
accentuate  the  evil  rather  than  lighten  it.  The  worst 
feature  of  all  is  that  when  under-assessment  once  sets 
in,  it  moves  forward  at  an  accelerated  pace.  For  the 
higher  the  rate  rises,  the  more  imperative  does  it  be- 
come for  each  individual  to  understate  his  property. 
But  the  more  the  property  is  understated,  the  higher 
the  rate  rises,  and  thus  the  worse  the  situation  is,  the 
worse  it  tends  to  become.  In  some  cases  the  rate  be- 
comes so  high  that  to  tell  the  literal  truth,  and  pay  the 
full  tax  rate,  would  mean  absolute  ruin.  Thus  in  some 
of  the  "towns"  of  Chicago,  previous  to  the  reform  of 
the  assessment  system  a  few  years  ago,  the  rate  stood 
as  high  as  eight  and  nine  per  cent.  Now  it  must  be  re- 
membered that  this  means,  not  the  contribution  of  eight 
per  cent  of  one's  income,  but  eight  per  cent  of  one's 
capital  property.  To  actually  pay  this  and  continue  in 
business  would  not,  for  ordinary  enterprises,  be  found 
possible.  The  result  is  that  both  the  assessors  and  the 
assessed  adopt  a  rough  scale  of  depreciation,  accepting 
as  accurate  a  figure  that  is  perhaps  one  fifth  or  one 
tenth  of  the  probable  actual  value  of  the  property  con- 
cerned. Meanwhile  the  incentive  to  dishonesty  remains, 
and  a  vast  amount  of  property  escapes  untaxed.^ 

1  For  detailed  statistics  as  to  the  operation  of  the  property  tax,  the 
following   works  may   be  consulted  :    Seligman,  Essays  on    Taxation, 


320      THE  STRUCTURE  OF  THE  GOVERNMENT 

Throughout  the  entire  United  States  opinion  is 
agreed  as  to  the  inefficiency  and  iniquitousness  of  the 
general  property  tax.  It  has  been  condemned  by  a 
long  series  of  state  tax  commissions  held  within  the  last 
forty  years,  and  by  all  the  highest  authorities  on  the 
subject  of  public  finance.  "  Instead  of  being  a  tax  on 
personal  property,"  said  the  New  York  commissioners 
of  1872,  "  it  has  in  effect  become  a  tax  upon  ignorance 
and  honesty.  That  is  to  say,  its  imposition  is  restricted 
to  those  who  are  not  informed  of  the  means  of  evasion, 
or,  knowing  the  means,  are  restricted,  by  a  nice  sense 
of  honor  from  resorting  to  them."  The  Illinois  com- 
mission of  1886  spoke  of  it  as  "  a  school  for  perjury, 
promoted  by  law."  The  New  York  report  of  1893  says, 
"  It  puts  a  premium  on  perjury  and  a  penalty  on  integ- 
rity." The  recent  industrial  commission  in  its  final  re- 
port (vol.  xix)  quotes  as  illustrative  of  the  general  feel- 
ing, the  words  of  a  special  committee  on  taxation  which 
reported  to  the  California  senate  in  1901 :  "  From 
Maine  to  Texas  and  from  Florida  to  California,  there 
is  but  one  opinion  as  to  the  workings  of  the  present 
system.  That  is,  that  it  is  inequitable,  unfair,  and  posi- 
tively unjust.  Theoretically  all  property  is  called  upon 
to  bear  a  share  of  the  public  burdens  in  exact  propor- 
tion to  its  present  value.  In  practice  that  end  is  ad- 
mittedly not  even  approached.  Scarcely  a  fractional 
part  of  the  propei-ty  in  any  commonwealth  is  brought 
to  the  tax  rolls.  This  is  especially  true  of  personal 
property  in  its  most  coveted  forms,  money  and  credits." 

chaps,  i,  ii,  and  xiii,  3d  edition,  1900  ;  Ely,  Taxation  in  American  States 
and  Cities ;  Final  Report  of  the  Industrial  Commission,  vol.  xix,  pp. 
1031-1071. 


LOCAL  GOVERNMENT  321 

That  the  reform  of  local  taxation  is  one  of  the  crying 
needs  of  the  American  system  of  government  is  only 
too  obvious.  But  before  considering  the  steps  that 
have  already  been  taken  in  that  direction,  and  the  vari- 
ous plans  suggested,  it  will  be  well  to  set  in  comparison 
the  systems  adopted  in  other  countries. 

8.  Systems  of  Local  Taxation  in  Other  Coun- 
tries. Complicated  as  is  the  local  administration  of 
England,  there  are  certain  features  of  its  financial  sys- 
tem which  merit  attention  in  connection  with  the  pre- 
sent question.  In  the  first  case  the  central  government 
does  not  divide  or  apportion  taxes  among  the  county 
councils  for  collection,  so  that  all  question  of  competi- 
tive under-assessment  as  between  counties  is  set  aside. 
Nor  is  there,  for  reasons  which  will  ajipear  presently, 
competitive  under-assessment  between  the  minor  areas. 
In  the  next  place  the  whole  field  of  personal  property, 
tangible  and  intangible,  is  left  out  of  local  taxation. 
Thus  the  American  difficulty  of  finding  "invisible  pro- 
perty "  is  avoided.  But  at  the  same  time  such  property 
contributes  to  the  national  finance  through  the  income 
tax,  an  adjustable  tax  ranging  from  two  to  five  per 
cent,  or  even  higher,  and  which,  among  its  other  cate- 
gories, is  levied  on  stocks,  shares,  etc.,  and  paid  at  the 
source.  Though  the  operation  of  the  income  tax  is  of 
course  fallible,  and  allows  the  more  fluid  forms  of  in- 
come (professional,  etc.)  to  partially  escape,  it  never- 
theless serves  to  make  the  intangible  forms  of  property 
contribute  to  the  general  revenue  of  the  state. 

The  actual  revenues  of  the  local  authorities  consist 
partly  of  sums  handed  over  to  them  by  the  central  gov- 
ernment, and  partly  of  "  rates "   (proportional  taxes) 


322      THE  STRUCTURE  OF  THE  GOVERNMENT 

which  they  levy  on  real  property.  To  the  first  class  be- 
long certain  payments  made  by  the  national  government 
to  the  counties  (administrative  counties,  and  county 
boroughs),  representing  a  fraction  of  the  amount  received 
as  the  proceeds  of  license  taxes  (liquor,  dogs,  guns,  etc.), 
a  fraction  of  the  estate  duties  collected,  and,  under  a 
statute  of  1890,  the  proceeds  of  certain  duties  on  spir- 
its and  beer.  In  other  words  the  national  government 
collects  various  taxes,  and  shares  them  among  the 
counties.  The  rest  of  the  local  income  comes  from 
direct  taxation.  The  rate  is  levied  not,  as  in  America, 
on  the  capital  value,  but  merely  on  the  annual  value 
of  real  property.  A  committee  of  the  county  council 
fixes  the  county  rate,  assigning  to  each  parish  a  stand- 
ard of  what  the  rate  is  to  produce.  This  involves  as- 
sessment as  in  America  of  the  property  value  in  the 
parish,  but  the  valuation  is  never  made  by  an  elected 
parish  officer.  The  county  authorities  follow  the  valu- 
ation made  by  the  national  government  for  the  raising 
of  the  income  tax,  or  that  of  the  poor-law  authorities, 
or  at  times  make  a  valuation  of  their  own.  Boroughs, 
districts,  and  parishes  levy  similar  rates  on  the  annual 
value  of  real  property.  The  difference  in  conditions 
between  England  and  America  is  seen  in  the  fact  that 
while  the  American  property  tax  ranges  (nominally) 
from  about  one  and  one  half  to  ten  per  cent  on  capital 
value,  the  total  of  various  kinds  of  English  local  rates 
for  the  year  1895-96  stood  at  4s.  bd.  on  the  pound  of 
annual  value  ;  in  other  words,  while  the  nominal  Amer- 
ican rate  is  at  one  to  ten  per  cent  of  capital,  the  Eng- 
lish rate  is  twenty-two  and  one  half  per  cent  of  income. 
Even  this  rate  is  considered  in   England  alarmingly 


LOCAL  GOVERNMENT  323 

high.  Ill  the  year  1899-1900,  something  over  forty  and 
a  half  million  pounds  was  raised  by  direct  taxation, 
and  twelve  and  a  quarter  million  pounds  derived  from 
the  contributions  of  the  central  government. 

It  must  not  be  thought,  from  what  has  been  said 
above,  that  the  situation  in  regard  to  local  finance  in 
England  is  altogether  felicitous.  There,  however,  the 
feature  which  occasions  grave  apprehension  is  not  the 
method  of  assessment  and  levy,  but  the  great  increase 
of  local  expenditure  and  local  debt.  The  local  expen- 
diture of  England  and  Wales  in  1868  was  only  thirty 
million  pounds ;  in  1900  it  reached  one  hundred  and 
one  million.  Much  of  this  has  been  paid  for  with  bor- 
rowed money,  and  the  total  of  local  indebtedness  stands 
at  about  three  hundred  million  pounds.  As  a  result 
local  rates  have  increased  to  a  great,  indeed  to  an  alarm- 
ing extent.  The  rate  per  pound  in  1891-92  stood  at  3s. 
Sd. ;  in  1895-96  at  4s.  5d.  It  is  true  that  the  borrow- 
ing power  of  local  bodies  is  subject  to  the  sanction  of 
the  local  government  board,  and  the  accounts  of  most 
local  bodies  are  audited  by  district  auditors,  appointed 
by  the  same  authority,  and  having  a  power  to  disallow 
items.^  A  further  extension  of  this  application  of  cen- 
tral control  would  seem  justified  by  the  circumstances. 

In  France^  local  government  presents  certain  fea- 
tures differing  in  a  marked  degree  from  the  systems 
both  of  England  and  America.  In  the  first  place,  use 
is  made  of  a  sort  of  internal  customs  duty,  the  oc- 
troi, levied  on  various  classes  of  goods  brought  into 

^  Odgers's  Local  Government,  chap.  xii. 

^  For  local   taxation  in  France,  see  Leroy-Beaulieu,   Traits  de   la 
Science  des  Finances,  vol.  i  (Gth  edition,  1899). 


324      THE   STRUCTURE   OF  THE  GOVERNMENT 

towns.  This  is  one  of  the  main  resorts  of  communal 
finance,  the  towns  as  already  seen  being  organized  as 
communes.  The  same  form  of  local  tax  is  used  in 
Paris  and  Lyons.  In  the  year  1896  no  less  than  1513 
French  cities,  towns,  and  villages  made  use  of  the 
octroi,  the  revenue  thus  produced  being  about  one 
third  of  their  total  revenue.  The  chief  articles  thus 
taxed  are  wines,  beer,  and  spirits  generally,  oil,  meat, 
combustibles,  fodder,  and  building  materials.  This  part 
of  the  French  system  is  certainly  to  be  condemned.  It 
hampers  trade,  and  is  troublesome  and  expensive  in 
collection.  Unfortunately,  like  other  indirect  taxes,  it 
has  the  insidious  quality  which  renders  its  use  tempt- 
ing to  municipal  authorities.  The  employment  of  the 
octroi,  though  abolished  at  the  time  of  the  French 
Revolution,  has  steadily  increased  in  the  nineteenth 
century,  and  in  1899  about  one  third  of  the  population 
of  France  were  subject  to  it. 

For  the  rest  of  the  municipal  revenue  and  f«Dr  the 
revenue  of  the  department,  a  quite  different  plan  is 
used.  There  are  four  great  direct  taxes  levied  by  the 
French  national  government,  —  the  tax  on  real  estate, 
tax  on  personalty  and  persons  (impbt  mobilier  et  'per- 
sonnel^^ the  door  and  window  tax,  and  the  tax  on  busi- 
ness. Of  these  the  last  named  is  a  graded  tax  on  all 
forms  of  business  enterprise,  varying  according  to  the 
kind  of  business,  the  magnitude  of  the  business,  and 
the  location  of  the  business.  The  whole  classification 
falls  within  the  scope  of  the  central  government ;  there  is 
no  apportionment  among  departments,  etc.,  and  hence 
no  chance  of  competitive  under-assessment.  It  is  as  if 
the  state  of  Massachusetts  imposed  a  license  tax  on 


LOCAL   GOVERNMENT  325 

all  forms  of  business,  which,  other  things  being  equal, 
would  be  higher  in  Boston  than  in  a  town  of  fifty 
thousand  people,  and  higher  in  the  case  of  bank- 
ing business,  other  things  being  equal,  than  for  a 
grocery  business,  and  finally  would  be  higher  in  the 
case  of  a  business  employing  one  hundred  men  than 
one  which  only  employed  twenty,  still  with  the  con- 
dition that  other  things  were  equal.  The  total  tax 
collected  would  therefore  vary  with  the  changing  fac- 
tors. Its  use  by  the  government  of  France  is  meant  to 
supplement  the  lack  of  a  national  income  tax.  Of  the 
other  taxes,  that  on  real  estate  is  based  on  what  is 
called  a  "  cadastre,"  or  fixed  valuation  made  by  the 
government  on  a  basis  of  area,  productivity,  value  of 
buildings,  etc.  The  part  of  this  valuation  referring 
to  land  remains  unchanged  for  a  long  time  together 
(1821-90).  That  on  buildings  has  been  frequently 
revised.  The  former  portion  of  the  tax  is  apportioned, 
that  is  to  say,  the  government  decides  on  a  total  sum 
and  collects  it  from  the  departments  in  proportion  to 
the  valuation  of  their  land,  the  rate  thus  varying  as  in 
the  United  States.  In  the  case  of  the  latter  portion  of 
the  tax,  the  government  fixes  the  rate  and  takes  the 
proceeds.  It  is  the  duty  of  the  local  authorities  in  the 
arrondissements  to  share  the  apportioned  tax  among 
the  communes ;  but  as  the  valuation  on  which  they 
proceed  is  made  for  them,  they  are  in  a  totally  dif- 
ferent position  from  that  of  the  American  assessors. 
The  so-called  personalty  and  persons  tax  (^impot  mo- 
hilier  et  personnel)  is  in  reality  an  apportioned  tax 
on  houses  together  with  a  capitation  tax  of  the  value 
(according  to  locality)  of  three  days'  labor.    Finally 


326      THE  STRUCTURE  OF  THE  GOVERNMENT 

the  "  door  and  window  tax  "  is  an  apportioned  tax  on 
houses. 

It  has  been  necessary  to  show  the  nature  of  these 
direct  taxes  in  order  to  explain  the  French  system  of 
local  taxation.  The  local  revenue  is  obtained  by  the 
addition  of  a  certain  percentage  to  the  sums  thus  col- 
lected. The  "  centimes  additionnels  "  as  they  are  called, 
are  settled  by  the  central  government,  and  collected 
by  its  agents.  It  is  for  this  reason  that  it  can  be  said 
of  the  general  council  of  the  department  that  it  has  no 
power  of  taxation.  The  "  centimes  additionnels,"  or 
sur-tax,  added  to  the  "principal"  of  the  French  direct 
taxes,  is  greater  than  the  principal  itself.  No  sur-tax  is 
added  to  the  capitation  tax  mentioned  above. ^ 

In  Prussia  use  is  made  of  the  octroi  ^  as  in  France, 
its  burden  falling  upon  mill-ground  articles,  cattle, 
meat,  etc.  There  are  also,  as  in  France,  sur-taxes 
added  to  the  direct  taxes  of  the  state  government  and 
other  direct  taxes  whose  proceeds  go  wholly  to  the 
local  authorities.  The  direct  taxes  of  the  first  class  in- 
clude the  income  tax  and  the  tax  on  circulating  busi- 
ness ;  those  of  the  second  class  comprise  the  taxes  on 
land,  houses,  and  fixed  business.  The  extra  percentage, 
or  sur-tax,  actually  collected  varies  greatly,  but  is 
under  the  control  of  the  central  government.  The  land 
assessment  is  made  by  commissioners  appointed  by  the 
state  government,  together  with  a  staff  of  technical 
experts  in  each  province.  The  persons  liable  to  the 
income  tax  are  divided  into  classes  within  which  all 
pay  the  same.    The  assessment  is  made  by  a  special 

^  In  some  cases,  however,  "  extra  centimes  "  are  added  to  the  fixed 
tax  for  state  purposes.  ^  The  octroi  is  not  used  by  Berlin. 


LOCAL  GOVERNMENT  327 

board  in  each  circle  or  county,  partly  appointed  by 
the  local  authorities,  but  in  the  majority  elected  by  the 
persons  liable  to  the  tax.  Unfortunately  the  method 
of  ascertaining  income  has  not  proved  satisfactory. 
Till  recently  (1891),  the  board  relied  largely  on  cir- 
cumstantial evidence  of  income  (style  of  house,  obvious 
expenditure,  etc.).  The  objection  that  this  was  an  in- 
quisitorial proceeding  led  to  the  adoption  of  self-assess- 
ment by  declaration.  In  spite  of  the  severe  penalties 
for  fraud,  a  great  part  of  income  escapes.  The  mode 
of  assessing  the  business  tax  is  peculiarly  interesting. 
The  French  system  of  classification  by  industries  and 
by  population  of  locality  was  abandoned  in  1891. 
Instead  of  it  businesses  are  grouped  into  four  classes 
on  a  joint  basis  of  capital  invested  and  earnings  made. 
The  assessment  of  the  toi?  class  is  made  province  by 
province,  by  assessors  of  whom  one  third  are  nomi- 
nated by  the  minister  of  finance,  and  two  thirds  by  the 
committee  of  the  province  (the  executive  committee 
of  the  elected  portion  of  the  provincial  government). 
The  tax  amounts  to  about  one  per  cent  of  earnings. 
The  two  middle  classes  are  taxed  district  by  district 
(^BezirTc),  and  the  lowest  class  is  taxed  in  each  "circle," 
or  county.  The  government  assigns  a  lump  sum  (based 
on  the  average  earnings  of  included  businesses)  to 
be  collected  from  all  businesses  of  the  same  class  in 
the  same  district  (or  minor  district),  and  this  is  shared 
among  the  individual  business  concerns  by  a  tax  com- 
mittee elected  from  their  number.  It  must  be  observed 
that  this  elected  committee  has  no  power  to  spare  its 
constituents  as  a  total.  This  form  of  tax  has  proved 
singularly  efficient. 


328      THE   STRUCTURE   OF   THE   GOVERNMENT 

9.   Reform  of  the  American  System.     Let  us 

now  in  tlie  light  of  what  has  been  said  in  regard  to 
foreign  countries  consider  some  of  the  chief  proposals 
for  the  reform  of  the  American  system  of  local  taxa- 
tion, and  the  steps  that  have  already  been  taken  in 
that  direction.  In  the  first  place  we  have  the  frequent 
suggestion  of  a  more  stringent  enforcement  of  existing 
laws.  This  is  what  has  been  done  in  Ohio  under  the 
"  tax  inquisitor  law,"  whereby  county  commissioners 
engage  an  individual  to  "  discover  "  personal  property, 
paying  him  a  proportion  of  the  tax  thereby  realized. 
In  view  of  the  obnoxious  character  of  the  property  tax 
so  generally  condemned,  mere  rigor  of  enforcement 
only  aggravates  the  situation.  The  Ohio  system  intro- 
duces a  feature  of  management  which  should  have  no 
place  in  public  administration,  except  in  dealing  with 
the  criminal  class.  Nor  is  the  system  of  making  the 
legal  assessment  value  (as  recently  done  in  Chicago) 
only  a  fraction  of  the  true  value,  of  any  permanent 
efficacy.  It  affords,  it  is  true,  the  opportunity  for  a 
general  repentance  and  a  new  start,  but  the  viciousness 
of  the  assessment  system  is  not  altered  thereby.  The 
proposals  which  appear  to  be  substantiated  by  the  expe- 
rience of  foreign  countries  are  (1)  the  separation  of  the 
sources  of  state  and  local  revenue,  and  the  abandoning 
of  the  system  of  apportionment,  (2)  the  abolition  of  the 
property  tax  on  personal  property,  and  (3)  the  creation 
of  other  forms  of  revenue  to  fill  the  void  thus  created 
and  to  satisfy  the  equities  of  taxation. 

The  first  of  these  proposals  has  been  endorsed  by 
the  American  League  of  Municipalities,  by  the  New 
York   State   Commerce   Convention,  and   by  various 


LOCAL  GOVERNMENT  329 

other  bodies.  In  Oregon  under  a  statute  operative  in 
1905,  apportionment  of  state  taxes  among  the  coun- 
ties is  abandoned.  The  proportion  of  state  taxes 
paid  by  each  county  will  depend  on  the  ratio  of  its 
own  expenditure  to  the  total  expenditure  of  the  coun- 
ties. The  Industrial  Commission  in  its  Final  Report 
(1902)  recommends  that  the  states  (not  the  localities) 
abandon  the  property  tax  altogether.  In  the  second 
place  the  abolition  of  the  tax  on  personalty  would 
leave  only  land  and  buildings  subject  to  the  property 
tax.  The  motive  for  concealment  would  be  lessened, 
since  there  would  no  longer  exist  the  sense  of  injustice 
at  the  escape  of  personalty  from  a  tax  to  which  it  was 
legally  liable.  The  experience  of  England  and  Prussia 
certainly  falls  in  with  the  suggestion  of  the  commission 
that  this  tax  should  be  for  local  purposes  only.  It  might 
seem  advisable  that  when  the  system  of  elected  asses- 
sors exists  it  should  be  abandoned  in  favor  of  assessors 
appointed  by  the  government  of  the  state  and  holding 
an  independent  tenure  of  office.  Such  a  suggestion  is 
but  little  consonant  with  the  current  political  ideas  of 
American  people.  But  the  experience  of  European 
countries  certainly  favors  it.  A  valuation  of  land  on 
the  French  system  by  general  survey  and  estimate 
would  reduce  that  portion  of  the  tax  to  a  stable  basis. 
In  reference  to  the  third  question,  that  of  creating 
other  sources  of  revenue,  much  has  already  been  done 
in  some  states  and  there  is  much  that  naturally  sug- 
gests itself.  The  successful  business  taxes  of  Prussia 
and  France  seem  to  indicate  a  useful  form  of  taxation. 
The  Industrial  Commission  recommends  the  adoption 
of  taxes  of  this  nature  as  a  supplement  to  the  property 


330      THE  STRUCTURE  OF  THE  GOVERNMENT 

tax.  In  several  of  the  Southern  states  there  already 
exist  "licenses"  or  "privilege  taxes"  which  are  of 
this  kind.  They  are  by  no  means  so  elaborate  as  the 
Continental  taxes,  varying  only  according  to  population 
or  other  evident  criteria,  but  not  proportional  to  the 
volume  of  business  transacted.  A  more  elaborate  form 
of  business  tax  with  the  Prussian  system  of  assessment 
would  be  a  decided  gain.  The  taxation  of  income  is  also 
recommended  by  the  commission  ;  theoretically  the  in- 
come tax  is  the  most  equitable  of  all,  but  experience 
shows  it  liable  to  grave  inequalities.  It  might  well 
form  a  part  of  a  reconstructed  tax  system  for  state 
purposes,  especially  if  income  from  real  estate  were 
omitted,  being  already  taxed  under  the  local  property 
tax,  and  if  the  English  system  of  tapping  the  income 
at  its  source  were  put  into  force.  Separate  income  taxes 
have  recently  been  levied  in  Virginia,  North  Carolina, 
and  South  Carolina.  Massachusetts  has  an  income  tax 
which  exempts  income  from  taxed  property,  and  which 
dates  from  colonial  times.  Pennsylvania  and  Louisi- 
ana attempt,  but  not  very  successfully,  to  tax  income 
under  the  property  tax.  An  amended  taxation  of  cor- 
porations —  which  are  now  taxed  in  various  ways, 
on  the  value  or  on  the  cost  of  property,  on  capital 
stock,  on  bonded  debt,  on  gross  earnings,  on  dividends, 
on  net  earnings,  etc.  —  is  also  proposed.  In  summary 
it  may  be  said  that  what  is  needed  is  a  complete  recon- 
struction of  local  taxation.  The  general  object  should 
be  to  avoid  the  present  evils  of  competitive  under- 
assessment and  invisible  property  and  to  institute  a 
new  composite  system  of  revenvie  calculated  to  prop- 
erly distribute  the  burden  of  taxation. 


LOCAL  GOVERNMENT  331 

READINGS  SUGGESTED 

Hart,  A.  B.,  Actual  Government  (1903),  part  iv. 

Courtney,  L.,  The  Working  Constitution  of  the  United  Kingdom 

(1901),  part  ii,  chap,  i,  pp.  205-220. 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897),  vol.  i,  chap,  i,  pp.  36^3,  308-334. 

FURTHER  AUTHORITIES 

Odgers,  W.,  Local  Government  (1901). 
Eaton,  D.  B.,  Government  oPMunicipalities  (1899). 
Ducrocq,  Cours  de  Droit  Administratif,  vol.  i  (1881). 
Seligman,  E.  R.,  Essays  in  Taxation  (3d  edition,  1900). 
Report  of  the  Industrial  Commission,  vol.  xix. 
Ely,  R.,  Taxation  in  American  States  and  Cities  (1888). 
Leroy-Beaulieu,  P.,  Traits  de  la  Science  des  Finances  (6th  edi- 
tion, 1899),  vol.  i. 
O'Meara,  J.  J.,  Municipal  Taxation  at  Home  and  Abroad  (1894). 
Jenks,  E.,  Outline  of  English  Local  Government  (1894). 
Bryce's  American  Commonwealth  (1889),  vol.  i. 
Fiske,  J.,  Civil  Government  in  the  United  States  (1891). 


CHAPTER  VIII 
PARTY  GOVERNMENT 

1.  Conflict  of  Opinion  on  the  Merits  of  Party  Government. —  2.  Origin 

and  Development  of  the  Party  System  in  England. —  3.  Origin  and 

Growth  of  Political  Parties  in  the  United  States. —  4.  The  Organiza- 

..." 
tion  of  American  Political  Parties. —  5.  Reform  of  the  System. —  6. 

Party  Machinery  in  Great  Britain. —  7.  The  Party  Groups  of  Con- 
tinental Europe. 

1.  Conflict  of  Opinion  on  the  Merits  of  Party 
Government.  By  a  political  party  we  mean  a  more 
or  less  organized  group  of  citizens  who  act  together  as 
a  political  unit.  They  share,  or  profess  to  share,  the 
same  opinions  on  public  questions,  and  by  exercising 
their  voting  power  towards  a  common  end,  seek  to  ob- 
tain control  of  the  government.  They  constitute  some- 
thing like  a  joint  stock  company  to  which  each  member 
contributes  his  share  of  political  power.  They  are  thus 
collectively  able  to  acquire  the  strength  which  it  would 
have  been  impossible  for  them,  acting  singly,  to  obtain. 
In  all  except  the  autocratic  modern  governments  this 
system  of  deliberate  collective  action  supplies  the  mo- 
tive power  which  keeps  the  wheels  of  administration 
moving.  Though  standing  almost  outside  of  the  legal 
structure  of  the  state,  party  government  is  the  vital 
principle  of  its  operation.  The  Constitution  of  the 
United  States  does  not  indeed  presume  the  existence 
of  political  parties  ;  but  in  the  evolution  of  American 
government  in  the  nineteenth  century,  they  have  come 


PARTY  GOVERNMENT  333 

to  be  its  central  feature.  In  the  United  Kingdom  the 
law  of  the  constitution  knows  nothing  of  any  such  in- 
stitution. But  the  customary  operation  of  the  Constitu- 
tion is  altogether  based  on  the  supposition  of  this  sort 
of  collective  action.  For  the  whole  cabinet  system 
—  which  we  have  seen  to  be  the  central  fact  of  Brit- 
ish government  —  presupposes  the  united  action  which 
alone  can  render  its  existence  possible.  The  countries 
which  have  deliberately  adopted  parliamentary  govern- 
ment —  France,  Italy,  Canada,  Australia,  etc.  —  have 
done  so  on  the  same  assumption.  The  law  cannot,  in- 
deed, expressly  decree  the  existence  of  parties,  but  it 
can  set  up  institutions,  as  in  the  countries  named,  which 
become  meaningless  without  them.  For  a  proper  study 
of  modern  government  it  is,  therefore,  necessary  to  take 
full  account  of  this  form  of  joint  political  effort  and  to 
study  the  organization  and  operation  of  modern  parties. 
We  may  thus  form  some  judgment  as  to  the  value  and 
efficiency  of  the  political  expedient  thus  devised. 

Party  government,  indeed,  has  been  variously  judged. 
It  has  been  extolled  as  the  most  natural  and  con- 
demned as  the  most  unnatural  of  political  phenomena. 
Those  who  judge  it  harshly  are  shocked  by  the  pecu- 
liarly artificial  agreement  which  it  sets  up  among  the 
group  of  party  adherents,  and  their  equally  artificial 
disagreement  with  their  opponents.  Each  side  remains 
in  a  state  of  willful  inconvincibility,  with  individual 
judgment  frozen  tight  in  the  shape  of  the  party  mould. 
This  kind  of  unanimity  seems  to  its  critics  false  and 
injurious ;  it  suppresses  that  very  freedom  of  individ- 
ual opinion  and  action  which  is  meant  to  be  the  vital 
principle  of  democratic  government.    Where  two  great 


334      THE  STRUCTURE  OF  THE  GOVERNMENT 

political  parties  dispute  the  field,  it  presumes,  as  has 
been  said  by  Professor  Goldwin  Smith,  "  a  bisection  of 
human  character,"  which  does  not  in  reality  exist. 
Those  who  defend  party  government  take  an  entirely 
opposite  ground.  They  draw  attention  to  the  fact  that 
in  a  certain  sense  the  bisection  of  human  nature  is  al- 
together in  accordance  with  fact.  There  are  naturally, 
they  claim,  ^  four  kinds  of  men,  —  those  who  wish  to 
return  to  the  methods  and  institutions  of  the  past  (re- 
actionaries), those  who  wish  to  retain  those  of  the  pre- 
sent (conservatives),  those  who  wish  to  reform  present 
institutions  (liberals),  and  those  who  desire  to  abolish 
them  (radicals).  If  for  evident  reasons  of  expediency 
the  two  former  classes  and  the  two  latter  act  together 
politically  we  get  a  division  into  two  great  political 
parties,  resting  on  fundamental  psychological  princi- 
ples. It  is  further  argued  that  far  from  being  in  con- 
flict with  the  theory  of  democratic  government,  it  is  the 
only  thing  which  renders  the  latter  feasible.  For  it  is 
impossible  for  all  the  people  to  rule  all  the  time  — 
taken  singly.  The  rule  of  the  people  can  only  mean 
the  rule  of  a  majority.  Now  the  only  way  in  which  any 
particular  set  of  people  can  remain  together  as  a  major- 
ity, and  thus  render  possible  a  stable  and  consistent 
administration  of  public  affairs,  is  that  the  members 
of  the  ruling  group  shall  "  agree  to  agree  "  with  one 
another.  A  modern  democratic  state  without  this 
somewhat  artificial  and  yet  essential  unanimity  would 
become  a  brawling  chaos  of  individual  opinions. 

The  validity  of  the  two  contentions  thus  urged  will 
depend  in  some  measure  on  the  circumstances  of  the 

^  See  W.  E.  H.  Leeky,  Democracy  and  Liberty. 


PARTY  GOVERNMENT  335 

time  and  country.  It  often  happens  —  as  in  the  case 
of  the  slavery  question  or  the  silver  question  in  the 
United  States,  the  free-trade  question  in  England,  etc. 
—  that  some  one  paramount  political  issue  presents  it- 
self which  of  necessity  separates  the  community  into 
affirmative  and  negative  divisions.  The  importance  of 
the  issue  is  such  that  the  supporters  of  either  side  are 
perfectly  willing  to  subordinate  to  it  all  minor  matters 
and  to  act  in  concert  in  everything  for  the  sake  of  the 
main  point  to  be  gained.  Two  free-traders  or  two  free- 
silver  men  might  consent  to  vote  and  act  together,  and 
to  put  their  interests  into  the  hands  of  the  same  repre- 
sentative, even  if  the  one  of  them  was  a  prohibitionist 
and  the  other  an  anti-prohibitionist.  It  is  in  such  cases 
as  this  that  the  party  system  seems  eminently  a  defen- 
sible one ;  it  offers  a  natural  and  reasonable  method  of 
reaching  the  main  object  to  be  achieved.  This  was  the 
condition  in  the  United  States  in  the  middle  of  the  cen- 
tury. It  was  also  the  chronic  condition  in  England  dur- 
ing a  large  part  of  the  nineteenth  century,  the  general 
idea  of  liberal  reform  being  opposed  to  the  general  im- 
mobility of  conservatism.  It  was  owing  to  the  existence 
of  this  state  of  things  that  party  government  grew  to  be 
invested  with  an  air  of  inevitability,  and  seemed  to  carry 
with  it  its  own  defense.  On  the  other  liand,  where  no 
such  main  issues  exist  the  party  system  must  depend  for 
existence  on  the  strength  of  its  organization.  It  must 
have  pledges  first  and  principles  after,  and  its  members, 
having  first  decided  to  agree,  must  next  make  up  their 
minds  what  it  is  they  agree  about.  This  is  the  present 
position  of  the  party  system  in  the  United  States.  Fail- 
ing this,  for  default  of  a  main  issue,  political  parties  will 


336      THE  STRUCTURE  OF  THE  GOVERNMENT 

take  the  form  of  numerous  and  rapidly  changing  groups, 
the  govei'nment  being  cari'ied  on  by  temporary  and 
unstable  combinations,  and  the  parties,  having  neither 
traditions  nor  standing  power,  being  animated  with  a 
dangerous  sense  of  irresponsibility.  This  is  the  position 
of  affairs  in  France,  Italy,  and  several  Continental 
countries.  At  the  present  juncture,  then,  the  party  sys- 
tem meets  with  keen  criticism  and  speculation  is  rife  as 
to  its  future  evolution. 

2.  Origin  and  Development  of  the  Party  Sys- 
tem in  England.  The  origins  of  party  government 
are  found  in  England  and  may  be  considered  as  dat- 
ing from  the  Elizabethan  era.  The  Puritans,  opposed 
to  the  intolerance  and  the  extreme  prerogative  of  the 
queen's  government,  exerted  themselves  to  gain  seats 
in  Parliament,  where  their  representatives  acted  as  an 
organized  party  in  arresting  the  royal  grants  of  mono- 
polies, etc.  On  the  basis  thus  formed  grew  up  the  popu- 
lar party,  whose  cohesion  was  rendered  stronger  by  the 
arbitrary  government  of  the  Stuart  kings.  "  Sandys, 
Coke,  Eliot,  Selden  and  Pym,  may  be  regarded,"  says 
Sir  Thomas  May,^  "  as  the  first  leaders  of  a  regular  par- 
liamentary opposition."  As  the  resistance  to  the  royal 
tyranny  increased,  the  defenders  of  popular  rights  and 
the  adherents  of  the  crown  changed  from  political  par- 
ties to  the  opposing  factions  of  a  civil  war.  But  after 
the  Restoration  the  same  parliamentary  division  reap- 
pears under  the  name  of  the  Court  Party  and  the  Coun- 
try Party  of  the  reign  of  Charles  II.    With  the  debates 

^  Sir  T.  E.  May  (Lord  Farnboroiig-li),  in  liis  Constitutional  History, 
vol.  ii,  chap,  viii,  gives  an  account  of  the  rise  and  development  of  the 
party  system  in  the  United  Kingdom. 


PARTY  GOVERNMENT  337 

over  the  Exclusion  Bill  of  1680  (for  debarring  the 
king's  brother  from  the  throne)  the  nicknames  of 
Whig  and  Tory  (terms  equivalent  to  "dough- face"  and 
"highwayman")  first  appear.  Henceforth  for  a  century 
and  a  half  these  names  indicate  the  two  great  political 
parties  by  whom  the  parliamentary  activity  of  the 
United  Kingdom  was  controlled.  The  Whigs  were  the 
opponents  of  the  royal  prerogative  and  the  adherents  of 
the  doctrine  of  parliamentary  supremacy ;  the  Tories 
advocated  the  power  of  the  crown.  Their  relation  to 
the  later  parties  must  not  be  mistaken.  Neither  was  by 
its  origin  the  party  of  progress  or  reform  ;  neither  the 
party  of  stability  or  order.  They  represented  merely 
two  different  theories  of  English  coustitutional  relations. 
After  the  accession  of  the  House  of  Hanover  the  two 
parties  found  their  positions  curiously  reversed.  The 
Whigs,  the  opponents  of  prerogative,  were  the  support- 
ers of  the  new  dynasty,  while  the  Tories,  the  advocates 
of  prerogative,  were  the  opponents  of  the  holder  of  the 
crown.  This  blunted  the  edge  of  their  original  hostility, 
and  helped  to  convert  them  from  the  position  of  inim- 
ical factions  to  the  decorous  and  official  form  of  opposi- 
tion since  maintained.  Moreover  the  practical  triumph 
of  the  principle  of  parliamentary  supremacy,  and  the 
recognition  of  the  hopelessness  of  the  Stuart  cause,  led 
to  an  alteration  in  the  distinctive  characteristics  of  the 
two  groups.  From  the  accession  of  George  III  onwards, 
the  Whigs  tended  to  become  the  advocates  of  reform 
and  progress ;  the  Tories  placed  their  faith  in  order  and 
security.  Thus  the  two  changed  into  the  great  Liberal 
and  Conservative  parties  of  the  nineteenth  century.  The 
doctrine  of  liberalism  favored  the  increased  "  democrat- 


338      THE  STRUCTURE  OF  THE  GOVERNMENT 

ization"  of  the  constitution,  the  grant  of  equal  political 
privileges  to  all,  the  abolition  of  the  remaining  religious 
disabilities  and  tests,  the  establishment  of  economic  lib- 
erty of  trade  and  industry.  To  this  the  Conservatives 
opposed  the  historic  view  of  political  rights  that  had 
grown  up  under  the  constitution,  the  safeguarding  of 
vested  interests,  and  the  resistance  of  dangerous  inno- 
vation. But  since  the  middle  of  the  nineteenth  century, 
these  original  characteristics  of  the  two  parties  have 
largely  been  obscured.  The  Conservative  administra- 
tions have  participated  in  many  of  the  great  reforms 
of  the  latter  part  of  the  nineteenth  century,  —  the  ex- 
tension of  the  suffrage,  the  reform  of  local  government, 
of  Irish  land  tenure,  and  so  forth.  The  present  complex- 
ion and  organization  of  party  life  in  the  United  King- 
dom will  be  considered  in  a  later  paragraph. 

3.  Origin  and  Growth  of  Political  Parties  in 
the  United  States.  In  America  we  may  consider  dis- 
tinct political  parties  as  beginning  with  the  colonial 
controversies  of  the  eighteenth  century.  The  standing 
opposition  of  the  representative  portion  of  the  colonial 
governments  to  the  governor  and  his  associates,  natu- 
rally divided  political  sympathy  on  much  the  same  lines 
as  in  the  mother  countrv.  As  in  Eus^land  durinjj  the 
Stuart  period,  the  war  of  the  Revolution  changed  the 
partisans  into  armed  combatants.  But  with  the  making 
of  the  first  truly  national  government  (1787)  political 
parties  reappear  on  an  entirely  new  basis.  Those  who 
favored  the  establishment  of  a  strong  central  govern- 
ment became  known  as  the  Federalists,  while  those  in 
favor  of  the  restriction  of  the  federal  power  were 
termed  Anti-federalists.    After  the  adoption  of  the  Con- 


PARTY  GOVERNMENT  339 

stitution  the  term  Federalist  indicated  those  in  favor 
of  consolidating  and  strengthening  the  federal  power, 
while  those  in  favor  of  the  rights  of  the  states  were 
called  Republicans.  The  latter,  being  supported  by 
the  general  trend  of  public  opinion  in  favor  of  the 
rights  of  the  individual  and  the  restriction  of  govern- 
mental functions  to  a  minimum,  then  current  both  in 
Europe  and  America,  eventually  carried  the  day.  The 
Federalists  declined  in  numbers  and  influence,  and 
in  the  early  twenties  were  practically  extinct.  Their 
opponents  had  in  the  early  years  of  the  Constitution 
strengthened  their  hold  upon  popular  sympathy  by 
adopting  the  name  Democratic  Republican,  which  has 
developed  into  the  present  term  of  Democrat.  After 
the  disappearance  of  the  Federalists,  the  absence  of 
definitely  marked  political  parties  led  to  a  sort  of  inter- 
regnum known  historically  as  the  Era  of  Good  Feeling ; 
this  designation  and  the  lapse  of  time  has  surrounded 
with  an  undeserved  halo  a  decade  which  "  was  really," 
says  Professor  Hart,  "  a  period  of  bitterness  and  rancor 
and  legislative  ineptitude."  ^ 

With  the  advent  of  Andrew  Jackson  (1829)  the 
Democratic  party  entered  on  a  new  phase,  in  which  it 
stood  for  extreme  individualism,  the  extension  of  the 
suffrage,  and  the  rights  of  "  the  people  "  in  the  special 
sense  of  the  term.  This  raised  up  in  opposition  the 
party  of  the  Whigs,  advocates  of  strong  government, 
national  improvements  (roads,  canals,  etc.),  and  a  pro- 
tective tariff.  The  rising  predominance  of  the  question 
of  slavery  (1820-1860)  sundered  the  Whig  party  and 
removed  them  from  the  political  arena.  In  their  place 
1  Actual  Government  (1903). 


340      THE   STRUCTURE   OF  THE   GOVERNMENT 

sprang  up  anti-slavery  parties  of  different  degrees  of  op- 
position. The  voting  strength  of  these  was  finally  gath- 
ered together  as  the  Republican  party,  opposed  to  the  fur- 
ther extension  of  slavei-y,  though  not  (as  a  party)  opposed 
to  its  existence.  The  Civil  War  removed  the  main  issue 
by  abolishing  slavery.  Since  then  the  same  two  great 
parties  have  remained  in  name,  but  their  evolution  in 
the  last  forty  years  has  rather  taken  the  form  of  a 
consolidation  of  the  organization  of  party  structure 
than  a  collective  adherence  to  any  single  principle  or 
policy.  The  Republicans  are  in  favor  of  protection,  but 
the  Democrats  are  certainly  not  free-traders.  The 
Republicans,  but  not  all  of  them,  are  in  favor  of  the 
gold  standard,  and  for  a  time  some  of  the  Democrats, 
but  not  all  of  them,  opposed  it.  The  states  of  the  South 
have  remained  solidly  Democratic,  but  this  is  by  the 
historic  continuity  with  past  conditions.  The  plain 
truth  is  that  both  parties  are  largely  opportunistic, 
adapting  their  policy  on  current  questions  to  the  cir- 
cumstances of  the  day,  and  mainly  governed  in  their 
selection  of  political  opinions  by  the  probability  of 
political  success.  The  party  organization  has  become 
the  leading  factor,  and  the  party  opinions  have  taken  a 
secondary  place.  A  Republican  is  no  longer  to  be  de- 
fined as  a  man  who  holds  such  and  such  opinions,  but 
as  a  man  who  adheres  to  the  Republican  organization 
and  will  support  its  candidates.  At  present,  then,  the 
striking  fact  in  connection  with  American  political 
parties  is  the  complete  mechanism  of  their  organiza- 
tion. 

4.    The    Organization   of    American    Political 
Parties.    That  parties  should  have  become  highly  or- 


PARTY  GOVERNMENT  341 

ganizecl  is  the  natural  outcome  of  the  circumstances  of 
the  country.  Among  the  contributory  causes  are  to  be 
noted  in  the  first  place  the  disjunction  of  executive 
and  legislative  power,  which  naturally  calls  for  a  bond 
of  union  in  the  shape  of  a  party  organization.^  To 
this  we  must  add  the  great  extent  of  territory  to  be 
covered,  the  impossibility  of  selecting  candidates  for 
the  presidency,  or  for  the  state  governorships,  secre- 
taryships, etc.,  in  any  purely  spontaneous  fashion.  Nor 
is  there  under  the  American  system  any  set  of  per- 
sons among  those  holding  power  who  are  placed  in  the 
same  position  of  evident  party  leadership  as  has  always 
been  the  case  with  the  party  leaders  in  England.  The 
attempt  of  the  members  of  Congress  to  assume  this 
position  and  to  nominate  candidates  for  the  presidency 
in  a  party  "  caucus,"  soon  fell  into  disrepute,  and  in 
1824  broke  down  altogether.  The  similar  attempt 
of  the  state  legislatures  in  the  decade  following  was 
equally  ineffective.  In  place  of  this  there  sjsrang  up  in 
the  twenties,  in  accord  with  the  general  American  idea 
of  the  sovereignty  of  the  people,  the  practice  of  hold- 
ing a  special  "  convention  "  or  meeting  of  rej)resenta- 
tives  selected  by  the  members  of  a  political  party,  to 
make  the  choice  of  its  candidates.  The  system  thus 
established  grew  apace.  As  long  as  the  great  slavery 
issue  was  before  the  nation,  the  convention  failed  to 
give  to  the  political  parties  the  highly  mechanical  as- 
pect they  have  since  assumed.  But  from  the  close  of 
the  Civil  War  the  machinery  has  become  more  and 
more  definite,  until  it  has  reached  the  elaborate  form 
in  which  it  now  exists. 

^  See  in  this  connection  F.  Goodnow,  Administration  and  Politics. 


342      THE   STRUCTURE  OF  THE   GOVERNMENT 

The  scheme  of  its  construction  is  as  follows.^  Its 
oro:anization  follows  the  division  of  areas  made  for  the 
purposes  of  elections.  In  each  of  these  a  special  meet- 
ing of  party  adherents  is  held  for  the  selection  of  candi- 
dates. The  basis  of  it  is  found  in  what  is  known  as  the 
primary,  often  called  a  "  caucus,"  in  the  New  England 
states.  In  theory  this  consists  of  a  meeting  of  all  the 
qualified  party  voters  resident  in  the  smallest  voting 
area :  township,  county,  or  precinct,  as  the  case  may  be. 
In  actual  fact  it  is  only  a  minority  of  the  voters  of  the 
party  who  are  to  be  found  at  a  meeting  of  the  primary. 
Many  absent  themselves  from  indifference,  others  for 
lack  of  the  technical  requirements  for  admission. 
Others  properly  qualified  are  excluded  by  unfair 
means.  This  is  particularly  true  of  primaries  held  in 
urban  areas,  where  the  voters  have  but  little  individ- 
ual acquaintance  with  one  another.  The  duty  of  a  pri- 
mary meeting  is  threefold.  It  appoints  the  standing 
committee  of  the  party  for  that  area,  it  nominates 
party  candidates  for  the  elections  held  in  its  district, 
and,  most  important  of  all,  it  sends  up  delegates  to  the 
party  meetings  held  in  the  area  of  which  its  own  forms 
a  subdivision.  In  these  larger  areas,  such  as  a  con- 
gressional district,  or  state  assembly  district,  or  state 
senate  district,  it  is  impossible  for  all  the  voters  to  be 
gathered  together.  In  them,  therefore,  the  party  meet- 
ing takes  the  form  of  a  "  convention,"  composed  of 
delegates  sent  from  the  primary  meeting.  The  func- 
tions of  such  a  convention  are  similar  to  those  of  the 

^  Mr.  Bryce's  admirable  description  of  party  machinery  in  the 
United  States,  American  Commonwealth,  vol.  ii,  part  iii,  has  never  been 
surpassed.    For  more  recent  information  see  Hart,  Actual  Government. 


PARTY   GOVERNMENT  343 

primary  itself.  It  appoints  a  committee,  it  makes  nom- 
inations for  office  in  the  district,  and  in  the  case  of 
some  areas  it  sends  up  delegates  to  the  state  conven- 
tion. The  state  convention  similarly  nominates  candi- 
dates for  the  governorship,  etc.,  appoints  the  state  party 
committee,  and  sends  delegates  to  the  national  conven- 
tion held  once  in  four  years. ^  This  national  convention 
stands  at  the  apex  of  the  system.  It  is  held  for  the 
selection  of  the  party  candidates  for  the  presidency  of 
the  United  States.  It  consists  of  twice  as  many  mem- 
bers as  the  state  has  members  of  Congress,  two  dele- 
gates being  sent  from  every  congressional  district,  and 
four  from  each  state  at  large  ;  these  together  with  six 
representatives  from  each  territory  make  in  all  994 
delegates,  which  is  at  present  the  full  complement  of  a 
national  convention.  A  duplicate  set  of  members 
known  as  "  alternates,"  or  substitutes  in  case  of  acci- 
dent, are  also  appointed.  The  convention  thus  consti- 
tuted draws  up  the  national  platform  of  the  party,  and 
makes  its  nominations  for  the  presidency.  The  nomi- 
nation is  made  by  ballot ;  in  the  Republican  party  a 
simple  majority  suffices,  in  the  Democratic  a  majority 
of  two  thirds  is  needed.  In  the  Republican  party  the 
members  of  the  delegation  sent  from  a  state  may  vote 
individually  for  different  persons ;  in  the  Democratic 
party  they  must  vote  as  a  unit  for  the  same  person. 

The    system   as  thus  planned  is    beautiful    in    the 
symmetry  of  its  organization.    It  seems  to  offer  a  thor- 

1  Delegates  are  sent  to  the  national  convention  from  the  state  con- 
ventions, or  from  the  congressional  district  conventions.  In  any  case 
the  four  delegates  corresponding  to  the  representation  of  the  state  in 
the  Senate  are  sent  from  the  state  convention. 


344      THE  STRUCTURE   OF  THE  GOVERNMENT 

ouglily  just  method  of  selecting  party  candidates,  and 
one  in  which  all  are  equally  entitled  to  participate. 
But  unfortunately  in  practice  it  has  opened  the  way  to 
the  gravest  political  abuses.  In  the  first  place  it  makes 
a  considerable  demand  upon  the  time  and  energies  of 
the  voters,  a  demand  rendered  all  the  greater  by  the 
multiplicity  of  American  elections.  There  is  a  natural 
temptation  for  the  voter  to  stay  away  from  the  pri- 
mary, and  to  content  himself  with  whatsoever  candi- 
dates it  may  select.  The  conduct  of  the  primary,  and 
as  a  consequence,  of  the  superior  coventions  to  which 
it  is  contributory,  thus  falls  under  the  control  of  the 
professional  "  politicians  "  and  their  hangers-on.  Hence 
arises  the  now  familiar  phenomenon  of  the  "  party 
ring "  and  the  party  "  boss,"  for  whom  the  elabo- 
rate system  of  party  machinery  serves  as  a  ready- 
made  instrument  of  political  control.  The  more  the 
primary  falls  under  the  control  of  an  inside  ring,  the 
more  are  the  ordinary  citizens  tempted  to  stay  away 
from  it,  deploring  its  vices,  yet  unable  single-handed 
to  combat  them.  In  the  city  primaries  the  number  of 
those  entitled  to  vote,  who  actually  do  vote,  is  seldom 
more  than  one  third,  and  often  drops  to  the  merest 
fraction.  Even  the  number  of  those  entitled  to  vote 
in  the  primaries  has  often  been  only  a  small  part  of 
the  voters  of  the  party.  For  as  long  as  the  primaries 
remained  self-constituted  bodies,  it  was  possible  for 
them,  as  for  example  in  New  York,  to  adopt  exclusive 
rules  of  admission  which  shut  out  all  but  the  favored 
few.  The  persons  who  were  entitled  to  vote  in  a  pri- 
mary, and  actually  did  vote,  became  only  a  fraction  of 
a  fraction.    Indeed  the  whole  of   the  elaborate  party 


PARTY   GOVERNMENT  345 

machinery  that  we  have  described  comes  to  be  operated 
not  from  its  own  spontaneous  force,  but  at  the  bidding 
of  the  clique  of  inside  politicians,  who  "  work  the  ma- 
chine." Instead  of  the  real  selection  by  a  party  con- 
vention, we  have  the  adoption  by  the  convention  of  a 
"  slate,"  or  list  of  names  already  prepared  for  them. 
The  worst  feature  of  all  is  the  class  of  men  thus 
brought  into  American  politics,  and  the  point  of  view 
they  bring  with  them.  The  nature  of  the  party  ma- 
chine lends  itself  to  repel  the  honest  and  to  attract  the 
unscrupulous.  Relatively  few  men  have  sufficient  pub- 
lic spirit  to  consent  from  purely  patriotic  motives  to 
seek  office  by  such  obnoxious  means.  The  opportunity 
is  thus  opened  to  second-rate,  shifty,  and  self-seeking 
aspirants,  to  whom  the  whole  party  machinery  merely 
offers  a  method  of  gaining  an  easy  livelihood,  embel- 
lished with  a  tawdry  conspicuousness.  Too  much  stress 
must  not,  however,  be  laid  on  the  sinister  side  of  Amer- 
ican party  life.  It  is  not  true,  as  a  foreign  observer 
might  be  inclined  to  think,  that  the  American  people 
as  a  nation  are  corrupted  by  it.  In  moments  of  stress 
or  in  the  presence  of  a  great  national  crisis,  the  artifi- 
cial barriers  set  up  by  such  a  system  are  easily  pushed 
aside,  and  the  right  men  shoulder  their  way  to  the 
front  of  public  life.  But  in  the  ease  of  quiet  times, 
and  in  the  absorbing  prosperity  of  a  great  industrial 
civilization,  the  machine  falls  back  again  into  the  hands 
of  those  who  make  it  their  business  to  run  it. 

5.  Reform  of  the  System.  The  question  of  find- 
ing a  remedy  for  the  evils  of  a  party  machine  has  long 
been  discussed.  The  only  real  and  permanent  cure 
would  be  found  in  rousing  the  ordinary  voter  from  his 


346      THE   STRUCTURE   OF  THE   GOVERNMENT 

habitual  indifference  and  absorption,  and  bringing  him 
to  take  an  active  interest  in  the  exercise  of  his  full 
political  rights.  This,  however,  is  a  matter  quite  beyond 
legislative  control,  and  can  only  come  with  the  growth 
of  vigorous  public  sentiment  in  regard  to  the  duties  of 
a  citizen,  stimulated  by  the  object-lessons  afforded  by 
rampant  corruption.  It  may  in  any  case  be  doubted 
whether,  with  the  present  system  of  short  terms  of  office 
and  numerous  elections,  such  an  active  public  life  of 
the  citizens  at  large  could  be  gained  without  serious 
detriment  to  their  other  social  activities.  It  would  be 
easier  to  reform  the  operation  of  American  parties,  if 
the  attempt  were  accompanied  by  the  lengthening  of 
elective  tenure  of  office.  Why,  for  example,  should  an 
elective  officer  hold  office,  as  do  a  vast  number  in  the 
United  States,  including  two  state  governors  —  for  one 
year  only?  Or  a  member  of  a  legislature,  as  is  cus- 
tomary, for  two  years  only  ?  There  is  nothing  pecu- 
liarly democratic  about  the  space  of  twelve  months ;  if 
change  is  a  good  thing  in  itself,  why  not  hold  a  new 
election  every  month  ?  With  fewer  elections  the  ordi- 
nary voter  would  be  able  to  concern  himself  more  di- 
rectly with  those  there  were,  and  the  practical  exclusion 
of  the  majority  from  political  control  would  no  longer 
be  possible. 

Even  within  the  limits  of  legislative  action  attempts 
have  already  been  made  to  remedy  the  evil  operation 
of  the  party  system.  The  first  of  these  is  the  plan 
of  making  the  primary  meeting  of  a  political  party 
a  legally  organized  body  instead  of  a  self -constituted 
group.  This  is  the  intention  of  the  so-called  "jirimary 
election  laws"  which  have  been  enacted  within  the  last 


PARTY   GOVERNMENT  347 

ten  years  in  most  o£  the  leading  states.  Massachusetts, 
New  York,  New  Jersey,  Pennsylvania,  Illinois,  Ohio, 
Michigan,  Maryland,  South  Carolina,  Georgia,  and 
other  states  have  already  adopted  statutes  of  this  kind. 
These  laws  provide  that  due  public  notice  shall  be 
given  of  the  time  and  place  of  primary  elections;  that 
the  elections  shall  be  by  ballot,  and  that  the  expense 
shall  be  paid  by  the  state.  The  laws  are  usually  com- 
pulsory in  cities  and  optional  in  rural  districts.  The 
above  provisions  still  leave  the  question  of  admis- 
sion to  the  primary  to  be  regulated  by  the  party  it- 
self. But  in  some  states  the  law  goes  further,  and 
defines  the  qualification  required  for  admission  to  the 
primary.  The  general  aim  is  to  give  to  all  persons 
who  voted  with  their  party  at  the  last  elections,  the 
right  to  a  vote  in  the  choice  of  candidates  in  the 
primary. 

A  still  more  fundamental  improvement  is  hoped  for 
by  the  adoption  of  the  system  of  "  direct  nomination," 
already  in  use  in  certain  elections  in  the  state  of  Min- 
nesota, and  largely  advocated  throughout  the  country. 
The  aim  of  this  plan  is  to  do  away  with  the  selection  of 
candidates  by  a  party  caucus.  In  place  of  it  is  held  a 
preliminary  election  in  which  all  voters  participate.  Each 
voter  indicates  the  name  of  the  candidate  he  nominates, 
and  the  party  for  which  he  nominates  him.  Prospective 
candidates  may  announce  their  names  to  the  public 
before  the  preliminary  election,  although  such  an  an- 
nouncement is  not  theoretically  a  requisite  to  the  work- 
ing of  the  plan.  The  result  of  the  election  is  to  give  the 
official  nomination  in  each  party  to  the  person  receiving 
the  largest  support.     It  is  thus  somewhat  akin  to  the 


348      THE   STRUCTURE   OF  THE   GOVERNMENT 

French  system  of  "double  balloting."^  The  peculiar 
difficulty  encountered  is  that  voters  may  with  malicious 
intent  help  to  nominate  an  inferior  candidate  in  the 
party  opposed  to  their  own.  The  Minnesota  law  was 
recently  amended  to  try  to  prevent  this ;  the  vote  is  also 
made  compulsory  to  force  indifferent  citizens  to  the 
polls.  It  may  safely  be  said,  however,  that  no  purely 
mechanical  legislative  aid  will  eliminate  the  standing- 
difficulty.  The  adoption  of  direct  nomination,  unless 
accompanied  by  a  regeneration  of  public  spirit  in  oper- 
ating it,  would  only  lead  to  the  existence  of  some  extra- 
legal machinery  for  selecting  candidates  as  a  prelimi- 
nary to  the  preliminary  election  itself.  The  old  evil  of 
the  ready-made  "slate"  would  reappear,  altered  j^er- 
haps  in  form,  but  unchanged  in  substance.  On  the 
other  hand  the  agitation  in  favor  of  direct  nomination 
is  itself  a  wholesome  sign  of  the  increasing  protest 
against  the  dominance  of  the  machine  politics. 

6.  Party  Machinery  in  G-reat  Britain.  In  the 
United  Kingdom  party  machinery  is  not  found  in  the 
same  highly  organized  state  as  in  the  United  States. 
This  has  been  due  to  the  fact  that  it  is  not  so  necessary. 
The  cabinet  system,  as  has  been  seen,  puts  executive  and 
legislative  power  into  the  same  hands.  In  America  the 
party  organization  forms  the  connection  by  which  the 
two  legally  distinct  branches  of  the  government  are 
brought  into  harmony.  This  function  therefore  is  not 
needed  in  England.    Add  to  this  the    fact  that   the 

^  In  France  if  no  candidate  has  an  absolute  majority  over  all  the 
others  a  second  election  is  held  about  a  fortnight  later.  In  this  the 
candidate  with  most  votes  is  elected.  Owing  to  the  great  number 
of  French  parties  the  first  election  acts  as  a  sort  of  trial  nomination. 


PARTY  GOVERNMENT  349 

English  parliamentary  elections  are  much  less  numer- 
ous than  the  various  elections  for  federal  and  state 
offices  in  the  United  States.  Nevertheless  the  use  of 
regular  party  machinery  is  growing  in  Great  Britain  ; 
though  long  regarded  by  many  English  people  with  dis- 
favor as  an  American  importation,  its  obvious  utility 
for  election  purposes  has  ensured  its  adoption,^  At 
the  centre  of  English  party  structure  stand  two  great 
political  organizations,  —  the  National  Conservative 
Union  and  the  National  Liberal  Federation,  —  whose 
headquarters  are  in  London.  Of  these  bodies  affilia- 
tions are  formed  in  each  polling  district  of  a  parlia- 
mentary constituency,  made  u}^  of  the  active  adherents 
of  the  i^arty  in  that  area.  This  is  the  germ  cell  of  party 
structure,  corresponding  to  the  American  primary.  It 
elects  representatives  to  a  party  council  of  the  whole 
constituency,  and  from  these  constituency  councils  re- 
presentatives are  sent  to  form  a  council  for  the  whole 
county  or  borough.  Finally  this  last  council  elects 
representatives  to  the  central  body  at  London.  The 
party  leaders  in  Parliament  naturally  exercise  a  con- 
trolling influence,  somewhat  as  the  congressional 
caucus  of  the  early  nineteenth  century  aspired  to  do. 
The  caucus  broke  down  because  under  the  American 
federal  system  the  national  congress  is  not  the  sole 
and  supreme  organ  of  national  political  life.  But  the 
different  situation  in  which  the  British  Parliament  is 
placed  naturally  puts  the  party  leaders  in  a  position 

1  Few  ■works  on  British  g-overnment  contain  any  reference  to  party 
organization.  The  student  may  consult  Michael  Maedonagh,  The  Book 
of  Parliament ;  and  Leonard  Courtney,  The  Working  Constitution  of  the 
United  Kingdom.  See  also  Ostrog'orski,  M.,  Democracy  and  the  Organi- 
zation of  Political  Parties. 


350      THE  STRUCTURE  OF  THE  GOVERNMENT 

to  exercise  a  radiating  control  over  all  the  constituen- 
cies. The  affiliated  branches  of  the  organizations  men- 
tioned act  as  the  means  of  giving  definite  direction  to 
this  control.  With  the  gradual  evolution  of  the  "  party 
convention"  the  system  of  party  "platforms"  is  begin- 
ning to  appear.  Authoritative  "  open  letters  "  or  ad- 
dresses of  the  great  party  leaders  and  resolutions  passed 
by  the  councils,  constituencies,  etc.,  are  of  this  charac- 
ter. Candidates  are  still  selected  in  somewhat  irregular 
and  varying. fashion,  accentuated  by  the  fact  that  resi- 
dence in  the  constituencies  is  not  needed  as  a  qualifi- 
cation. The  custom  of  reelecting  the  same  person  again 
and  again  obviates  the  necessity  of  making  a  selection. 
If  a  new  choice  must  be  made,  it  is  done  either  by  the 
constituency  council,  or  if  they  cannot  agree,  the  central 
council  at  their  suggestion  proposes  a  likely  candidate 
to  them,  or  even  indicates  two  or  three  from  whom 
they  may  select. 

7.  The  Party  Groups  of  Continental  Europe. 
On  the  continent  of  Europe  party  governance  presents 
certain  features  differing  markedly  from  the  situation 
hitherto  existing  in  America  and  Great  Britain.  In- 
stead of  two  great  political  parties  overshadowing  all 
others,  and  alternating  in  the  control  of  the  govern- 
ment, we  find  in  France,  Germany,  and  Italy  a  consid- 
erable number  of  party  groups,  no  one  of  which  is 
stronjj  enousrh  to  outnumber  all  the  others.  In  France 
and  Italy,  this  is  a  particularly  disturbing  element  in 
public  life,  since  the  administration  of  those  countries 
is  based  on  the  cabinet  system,  rendering  the  executive 
government  dependent  on  the  continued  support  of  a 
majority  in  the  lower  house  of  the  legislature.   Under 


PARTY  GOVERNMENT  351 

the  group  system  of  party  life,  no  one  party  is  able  to 
afford  that  suj^port.  It  must  therefore  be  obtained  by 
means  of  a  coalition  of  separate  parties  whose  mutual 
support  is  given  purely  for  reasons  of  expediency,  and 
may  be  withdrawn  at  any  time  in  favor  of  a  more  pro- 
fitable combination.  It  is  to  this  fact  that  is  due  the 
notorious  instability  of  French  ministries  under  the 
Third  Republic.  There  exist  in  France  about  seven 
major  political  parties,  with  minor  subdivisions.  Follow- 
ing on  the  general  elections  of  1902,  the  classification  of 
the  Chamber  of  Deputies  comprised  111  Government 
Republicans,  99  Progressist  Republicans,  129  Radical 
Republicans,  90  Socialist  Radicals,  59  Nationalists,  50 
Conservatives,  49  Socialists.  The  first  of  these  repre- 
sent the  supporters, /jaT*  excellence,  of  the  present  regime. 
The  Nationalists  and  Conservatives  are  the  result  of  the 
reconstruction  of  the  former  monarchial  j)arties.  The 
others  are  of  various  degrees  of  radicalism  and  socialism. 
No  one  of  these  is  strong  enough  to  support  a  ministiy 
by  itself.  All  the  ministries  of  the  Third  Republic,  with 
the  exception  of  the  short-lived  radical  ministries,  have 
been  formed  with  the  Government  Republicans  as  the 
nucleus,  with  contributory  support  from  other  fluctvi- 
ating  groups.  The  instability  which  naturally  resulted 
has  been  aggravated  by  the  methods  of  French  legisla- 
tive procedure,  it  being  customary  for  the  cabinet  to 
resign  even  if  defeated  on  matters  of  minor  moment, 
or  in  consequence  of  an  "  interpellation  "  *  in  the  Cham- 
ber  of    Deputies.     Even  the  members  of   the  cabinet 

1  The  "  interpellation  "  differs  from  the  "  questions  "  raised  in  the 
British  parliament  in  that  a  debate  on  the  point  raised  is  allowed  after 
the  interpellation,  hut  not  after  a  question. 


352      THE   STRUCTURE   OF  THE   GOVERNMENT 

itself  are  less  interested  in  its  continuance  than  is  the 
case  in  England,  since  they  may  very  possibly  them- 
selves form  part  of  the  I'econstructed  cabinet  which 
supplants  it.  The  relation  of  political  parties  to  cabi- 
net government  thus  stands  upon  quite  a  different  foot- 
ing in  France  from  what  it  does  in  the  United  King- 
dom. Indeed  the  commendation  which  it  has  so  largely 
met  in  the  latter  country  rests  on  the  presumption  of 
the  existence  of  two  great  parties  as  a  sort  of  natural 
phenomenon  likely  to  continue.  The  absence  of  such 
in  France  upsets  the  whole  calculation.  In  Italy  and 
in  the  German  empire,  there  is  the  same  subdivision 
of  party  groups.  The  elections  to  the  German  Reichs- 
tag of  June,  1903,  showed  at  least  a  dozen  different 
parties.  The  Reichstag  contains  397  members,  but 
even  the  most  numerous  of  the  parties,  the  clericals, 
had  only  a  hundred  seats.  Several  of  the  parties  (anti- 
Semites,  moderate  Radicals,  etc.)  had  less  than  ten. 
The  subdivision  of  parties  is,  however,  of  much  less 
national  consequence  in  Germany  than  in  France,  since 
parliamentary  government  does  not  exist. 

Looking  at  the  institution  of  party  government  gen- 
erally, it  seems  liable  to  one  or  the  other  of  two  grave 
dangers.  If  bisection  of  opinion  on  a  paramount  issue 
does  not  exist,  then  the  consolidation  of  the  party  may 
become  a  purely  mechanical  affair.  What  was  in  its 
origin  a  natural  bond  of  union  may  degenerate  into 
the  cohesion  created  by  artificial  pai"ty  ties.  On  the 
other  hand,  where  such  cohesion,  natui-al  or  artificial, 
is  not  forthcoming,  parties  assume  the  fragmentary  and 
unmanageable  form  seen  on  the  continent  of  Europe.  In 
Great  Britain,  where  the  operation  of  the  constitution 


PARTY  GOVERNMENT  353 

in  its  present  shajDe  is  dependent  on  party  government, 
the  situation  of  public  affairs  at  tlie  ojjening  of  this 
century  is  at  a  very  interesting  juncture.  Within  the 
last  two  decades  the  older  line  of  cleavagfe  has  been 
intersected  in  all  directions  with  new  divisions.  The 
adoption  of  the  Home  Rule  policy  by  Mr.  Gladstone 
(1886)  divided  the  Liberals  into  Unionists  and  Home- 
Kulers.  The  adhesion  of  the  former  to  the  Conserva- 
tives partially  healed  the  breach  thus  created.  But 
with  the  close  of  the  century  the  division  into  Imperi- 
alists and  anti-Imperialists,  Protectionists  and  Free- 
Traders,  and  other  minor  rifts  of  opinion  has  violently 
disturbed  the  formation  of  parties.  It  remains  to  be 
seen  whether  the  British  political  parties  will  disinte- 
grate into  groups,  will  adopt  a  formal  system  of  union 
with  pledges  and  platforms  on  the  American  plan, 
or  will  find  some  means  of  revertino-  to  their  earlier 
condition  of  "  natural "  opposition  on  a  fundamental 
question.  It  is  more  in  accord  with  the  history  of 
British  parliamentary  life  to  presume  that  the  present 
dominant  fiscal  question  will  lead  to  a  new  division  of 
parties  on  a  single  line  of  cleavage. 

READINGS  SUGGESTED 
Ostrogorski,  M.,  Democracy  and  the  Organization  of   Political 

Parties  (1902),  vol.  i,  chap,  viii,  and  vol.  ii   (especially)   part 

ii.     See  also  Mr.  Bryce's  preface. 
Bodley,  J.,  France,  vol.  ii,  bk.  iii,  chap.  v. 
Godkin,  E.  L.,  Unforeseen  Tendencies    of   Democracy    (1898), 

Essay  No.  3,  The  Nominating  System. 
De  Tocqneville,    A.,    Democracy    in   America  (1835),  chap,  x 

(Parties  in  the  United  States). 


354     THE  STRUCTURE  OF  THE  GOVERNMEIJT 

FURTHER  AUTHORITIES 
Hopkins,  J.  H.,  History  of  Political  Parties  in  the  United  States 

(1900). 
Macy,  J.,  Political  Parties  in  the  United  States,  1846-61  (1900). 
McKee,  T.  H.,  National  Convention  and  Platforms,  4th  edition 

(1901). 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897). 
Ford,  H.  J.,  Rise  and  Growth  of  American  Politics  (1898). 
Bryce,  J.,  American  Commonwealth  (1889). 
Macdonagh,  M.,  Tlie  Book  of  Parliament  (1897). 
Carr-Gomm,  F.  C,  Handbook  of  the  Administrations  of  Great 

Britain  (revised  edition,  1901). 
Hazell's  Annual  (yearly). 

Lecky,  W.  E.  H.,  Democracy  and  Liberty  (1896). 
Maine,  Sir  H.,  Popular  Government  (1886). 
Goodnow,  F.  J.,  Politics  and  Administration  (1900). 
Young,  Sir  F.,  Exit  Party  (1900). 
May,  Sir  T.  E.  (Baron  Farnborough),  Constitutional  History  of 

England,  vol.  ii  (especially  chap.  viii). 


TABLE  OF 

\cei- 

Cc 

Clerical 
Repre- 
sentatives 

0 

iless 
pre- 
Ived 

1 
j 

2  archbish- 
ops 
24  bishops 

iless 
ved 

0 

iless 
ved 

0 

iless 
ved 

0 

iless 
ved 

0 

iless 
ved 

Representa-   1 

cives  of  chap-  p 

ters                  t 

h 

less 
ved 

0 

less 
ved 

18 

less 
red 

55 

less 
ifed 

0 

0 

e  two 

na,  or 

chambers  ;  a  f 
e  consisting  of 

V 


TABLE  OF  LEGISLATURES 


Nameaf  Upper 
Home 

Name  of  Lower 

1 

«i5 

Term  of  Upper 

Tf  mi  of  Lower 
Hoi^e 

Composiliou  of  Upper  Home 

Clerical 
Repre. 

Hereditary 

Appointed 

.,„,. 

Constiliilionat  Rtlation  o/  Ike  Tivo  Houses 

-— 

SeuAtB 

HouM  of^Rep- 

w 

386 

=,HSi 

2yearfl 

^ 

0 

" 

IK. 

a^r° 

Houae  of  Com- 

693 
(1905) 

070 

Life,  except 
Peera  represent- 
ing  Scotland 

ParllBmeiit    pro- 
vioualy  dissolved 

24bishopB 

Appeal 

Ireland;  16 
from  Peers 
of  Scotland 

The  Commona  have  eiclusive  control  of  the  raising  and  spending  of  money.  In 
other  mattera  the  relatione  of  the  houses  stand  thus  :  "  If  there  is  a.  difference  of 

Lords  ought  at  some  point  (not  definitely  flxed)  to  give  way.  and  ehould  the  Peers 

country,  it  becomes  the  duty  o(  the  crofvn,  or  of  its  responsible  advisers,  to  create 
or  threaten  to  create  enough  netv  Peers  to  override  the  opposition  of  the  House  of 
Lords  and  thus  restore  harmony  between  the  two  branches  of  the  Legislature." 
Dicey,  "  Law  of  the  Constitution,"  pp.  3&*  *(  icq. 

C«»»I)A 

Senate 

HouBe  or  Com- 

81 

214 

Life 

— "--T 

^ 

" 

81 

" 

"  Bills  for  appropriating  any  part  of  the  public  revenue  or  for  imposing  any  tax 

*..„.. 

Houae  of  Rep- 

36 

yeare 

eooiier  dissolved 

"  Proposed  laws  appropriating  revenue  or  moneys  or  imposing  taitntion  shall  not 
originate  in  the  Senat«.  The  Senate  may  not  amend  proposed  laws  imposing  taxa- 
tion or  proposed  laws  appropriating  revenue  or  moneys  for  the  ordinary  annual 
services  of  the  govemmeut."    Commonwealth  of  Australia,  Constitution  Act, 

FRiKCR 

SenaUi 

Deputks 

3» 

584 

Syeara.  Onetliird 

retire     every     3 
yenra 

Lsrj.sr 

^ 

° 

0. 

300 

"  Finance  bills  must  Rrst  be  presented  to  the  Chamber  ot  Deputies  and  voted  by 
them."    Loi  Constitutionelle,  24  Feb.,  1875,  §  8. 

r,r 

....„.„ 

Beicliatttg 

68 

397 

At  the  diBcretioin 

ent  parta  of  the 
Empire 

•—"'-'•'" 

*" 

0 

58 

** 

Coordinate  powers.  "  Imperial  legislation  is  effected  by  the  Bundesratii  and  the 
Reichstag.  The  consent  of  the  majority  vote  of  both  houses  is  neceeaitry  and  is 
adequate  for  an  imperial  law."    Constitution,  act  G. 

PansBU 

Abgeordneten- 

[tepresenta- 

'B^' 

appointed  by 
king  on  pre- 
aentalion  by 
landowners, 
niilverfllties, 
eliaptera. 
etc..  170; 

'Finance  bills  shall  be  submitted  first  to  the  Chamber  of  Deputies:  they  almll 
be  accepted  or  refused  in  their  entirety  by  the  House  of  Lords."  CoiiBtitutiou, 
1860.  V.  §02. 

Spain 

Senate 

CongTcaa 

m«i- 

431 

Life 

MMuer  dissolved 

° 

..i. 

100 

180 

•  Iaws  in  reference  to  the  taxes  and  the  public  credit  must  be  Rrst  presented 
to  the  Congress."     Conatitution.  IS7C,  5  42. 

.™„,.. 

Herrenlmus 

Abgeordneten- 

About 
200 

!    yeara    iinleaa 

18 

ir.7 

every  law.  It  in  a  finance  law  in  regard  to  particular  items,  or  in  a  law  for  raisluK 
recruits  in  regard  to  the  number  o(  the  contingent  to  be  raised,  in  despite  of  re- 
peated consideration  no  agreement  can  be  reached  by  the  two  houses,  then  the 

Deo.,  1807.513. 

«-»'"' 

Mngimtea) 

Ki^nriaelfihdi 
(Houfe  of 
Deputfea) 

«8 

453 

Life  tenure   ex- 
cept   ez    officio 
mambera 

sooJwdisJv™ 

66 

267 

74  and  19  n 
officio 

3  (delsgales 
lla) 

Coardluftte.  —  Custom  and  Law  of  1885,  §  13. 

■"" 

Senate 

Chamber  of 
Deputies 

(year 
1006) 

60S 

Lite 

L,1«"m^ 

" 

4  princes 

357 

" 

'  Every  law  for  imposing  taxes  or  tor  sanctioning  the  balances  or  accounts  of 
the  state  shall  be  presented  first  to  the  Chamber  of  Deputies."    Statuto,  art.  lU, 

Stitibrlaxd 

Stnndernth 

Nationalratl) 

« 

107 

At  the  diacretion 

3  year. 

" 

° 

44  (appoint- 

" 

Coordinate  powers.  —  Constitutional  Act  89. 

'*  Federal  laws  can  only  be  passed  with  the  consent  of  both  houses." 

^ 


PART   III 
THE  PROVINCE  OF  GOVERNMENT 


CHAPTER  I 

INDIVIDUALISM 

1.  The  Individualistic  Theory  of  tlie  Functions  of  Government.  —  2. 
Individualism  as  based  on  a  Theory  of  Justice.  —  3.  Based  on  a 
Theory  of  Profitability;  the  Doctrine  of  Laissez  Faire. — 4.  Based 
on  a  Biological  Analogy;  the  Survival  of  the  Fittest. — 5.  Con- 
flicting Forces. 

1.  The  Individualistic  Theory  of  the  Functions 
of  Government.  In  the  first  and  second  divisions  of 
the  present  volume  we  have  considered  the  general  na- 
ture of  the  state,  and  the  constitution  and  structure  of 
governmental  bodies.  The  discussion  of  the  form  of 
government  has  of  necessity  preceded  the  treatment 
of  the  proper  sphere  of  its  operation.  Yet  in  our  own 
time  the  latter  topic  in  practice  assumes  the  place  of 
paramount  importance.  The  general  opinion  of  civil- 
ized countries  recognizes  the  validity  of  the  principles 
of  popular  sovereignty  and  democratic  government, — 
whether  expressed  by  means  of  a  limited  monarchy  or 
in  a  republican  form.^  It  is  generally  admitted  also  that 
the  adoption  of  popular  government  does  not,  in  and 
of  itself,  as  the  sanguine  theorists  of  a  hundred  years 

1  In  stating  that  the  general  consensus  of  opinion  is  in  favor  of 
democracy,  it  is  not  to  be  denied  that  popular  government  has  found 
occasional  detractors  among  writers  of  reputation  and  ability.  Sir 
Henry  Maine  {Popular  Government,  1886)  declares  it  to  be  "  extremely 
fragile,"  "not  in  harmony  with  the  normal  forces  ruling  human 
nature,"  and  "apt  therefore  to  lead  to  cruel  disappointment  or  serious 
disaster." 


358  THE   PROVINCE   OF  GOVERNMENT 

ago  hoped  it  might,  offer  a  solution  of  all  our  political 
and  economic  problems.  Even  granting  that  the  gov- 
ernment is  to  be  controlled  by  the  people  and  for  the 
people,  we  have  yet  to  ask  what  is  to  be  the  proper 
sphere  of  its  operation  for  the  general  benefit.  We 
employ  in  ordinary  discourse  a  variety  of  phrases  to  in- 
dicate the  subject  in  question,  speaking  indifferently  of 
the  sphere  of  the  state,  state  control,  the  functions  of 
government,  the  province  of  government,  etc.  Moi-e  spe- 
cial aspects  of  the  problem  are  seen  in  connection  with 
government  ownership  of  railways,  the  control  of  trusts, 
and  the  management  of  public  utilities.  But  whether 
in  its  general  theoretical  aspect  or  in  particular  form, 
the  problem  involved  is  emphatically  the  paramount 
question  of  the  opening  of  the  twentieth  century. 
In  the  following  three  chapters  we  shall  endeavor  to 
deal  with  it  in  systematic  form,  considering  one  after 
another  the  solutions  that  have  been  offered  in  theory 
and  practice  to  the  open  question  of  government  con- 
trol. First  we  shall  deal  with  the  individualistic  solu- 
tion, or  system  of  natural  liberty,  to  which  we  have 
already  referred  in  a  somewhat  different  connection  in 
a  preceding  chajiter.  In  the  second  place  we  shall 
discuss  the  ideals  of  collectivism,  and  the  attempts 
that  have  been  made  for  its  partial  realization.  The 
discussion  of  the  actual  economic  operations  of  mod- 
ern states  on  what  may  be  called  an  individualistic 
basis  modified  to  a  great  extent  by  utilitarian  and 
opjoortunistic  considerations,  will  be  considered  in  con- 
clusion. 

To  the  treatment  of  the  individualistic  doctrine  of 
the  functions  of  government  belongs  of  right  the  pre- 


INDIVIDUALISM  359 

cedence.  For  it  constituted  during  a  large  part  of 
modern  times  what  might  be  called  the  official  creed 
of  enlightened  governments  ;  was,  until  our  own  genera- 
tion, defended  by  the  greatest  theorists  of  the  modern 
era,  and  although  discredited  in  its  extreme  form,  re- 
mains as  the  working  basis  of  the  economic  operation 
of  both  the  American  and  the  British  governments. 
The  individualistic  theory  may  be  briefly  stated  in  the 
proposition  that  the  sole  duty  of  government  is  to 
protect  the  Individual  from  violence  or  fraud.  Accord- 
ing to  this  theory  the  positive  interference  of  the  state 
with  the  individual  even  In  his  own  interest  Is  not  justi- 
fied. Nor  Is  the  state  justified  In  undertaking  opera- 
tions of  an  economic  character,  or  In  imposing  restric- 
tions (other  than  in  prevention  of  violence  or  fraud)  on 
the  economic  activities  of  its  citizens.  A  schedule  of 
government  functions  admissible  on  a  purely  individu- 
alistic plan  would  include  the  maintenance  of  an  army 
and  a  navy,  courts  of  justice  and  a  force  of  police,  the 
enforcement  of  a  criminal  law  and  of  statutes  in  ref- 
erence to  sanitation,  adulteration  of  food,  inspection 
of  steamboats,  etc.,  these  being  indirectly  protective  In 
their  character;  but  it  could  not  comprise  the  con- 
duct of  the  post-office,  the  maintenance  of  hospitals  and 
poor-houses,  or  the  operation  of  railroads.  Only  such 
actions  on  the  part  of  the  state  as  were  directed  to  pre- 
vent the  Interference  of  its  citizens  with  one  another 
would  be  legitimate. 

2.  Individualism  as  based  on  a  Theory  of 
Justice.  This  system  of  individual  liberty  against 
the  interference  of  government  has  been  defended  on 
different  grounds.   As  a  matter  of  justice  It  has  been 


360  THE   PROVINCE   OF  GOVERNMENT 

argued  that  the  individual  has  a  right  to  be  let  alone. 
On  economic  grounds  it  has  been  contended  that  it 
pays  to  let  him  alone.  Lastly,  on  purely  scientific 
grounds,  it  has  been  argued  that  it  is  in  general  conso- 
nance with  the  evolutionary  nature  of  human  progress 
that  the  individual  should  struggle  for  himself  and 
survive,  or  fail,  according  to  his  fitness.  The  first  of 
these  arguments  —  the  i-estriction  of  the  operation  of 
government  to  the  defense  of  the  rights  of  the  indi- 
vidual —  is  especially  found  in  the  writings  of  the 
political  philosophers  of  the  later  eighteenth  and  early 
nineteenth  centuries.^  We  find  it  in  the  theory  of 
the  state  advanced  by  Kant  and  Fichte  and  following 
as  a  corollary  upon  their  view  of  the  doctrine  of  the 
social  contract.  Kant,  actuated  by  a  spirit  of  protest 
against  the  paternal  interference  of  the  Continental 
governments  of  his  day,  and  their  intrusion  into  the 
private  life  of  the  citizen,  bases  his  views  of  govern- 
mental functions  on  the  idea  of  liberty,  and  assigns  to 
the  state  "  the  hindering  of  the  hindering  of  liberty  " 
as  its  proper  policy."  But  among  German  writers  Wil- 
helm  von  Humboldt,  in  his  "  Sphere  and  Duties  of  Gov- 
ernment," offers  the  most  complete  expression  of  the 
thoroughgoing  political  individualism  characteristic  of 
this  period.  Taking  as  his  starting-point  the  "  individ- 
ual man  and  the  highest  ends  of  his  existence,"  Hum- 
boldt finds  the  paramount  consideration  to  be  that  of 
individual  variety  and  self-development.    On  this  the 

1  An  excellent  critique  of  the  individualism  of  the  eighteenth  cen- 
tury, and  its  transmission  to  the  nineteenth,  is  found  in  Michel,  L'Idie 
de  VEtat  (introduction  and  bk.  iii). 

2  See  above,  bk.  i,  chap.  v. 


INDIVIDUALISM  361 

active  interference  of  government  can  have  none  but 
a  detrimental  effect.  For  this  reason  "  the  state  is  to 
abstain  from  all  solicitude  for  positive  welfare,  and 
not  to  proceed  a  step  further  than  is  necessary  for 
mutual  security  and  protection  from  foreign  enemies," 
Even  such  examples  of  interference  as  national  educa- 
tion and  state  relief  of  the  poor  are  to  be  condemned. 
This  political  theory  of  non-interference  received  a 
decided  stimulus  from  its  false  analogy  with  the  doc- 
trine of  popular  sovereignty.  It  was  but  natural  that 
at  the  beginning  of  modern  democratic  government 
the  idea  of  the  right  of  the  nation  to  govern  itself 
should  be  confounded  with  the  somewhat  similar  claim 
of  the  individual  to  be  left  alone  to  manage  his  own 
affairs.  Political  freedom  and  non-interference  seemed 
synonymous  terms.  In  America  the  idea  of  individual 
rights  was  dominant  during  the  formative  period  of 
the  republic.  The  original  situation  of  the  colonists, 
compelled  to  wring  their  sustenance  from  a  reluctant 
wilderness,  the  discredit  of  government  in  general  by 
the  land  fees,  quit  rents,  and  tea  taxes  of  the  royal 
regime,  inspired  the  Americans  with  an  intense  belief 
in  self-reliance  and  individual  rights.  We  find  it  as 
the  central  feature  of  the  political  philosophy  of  Thomas 
Jefferson,  and  the  writers  of  the  period,^  and  it  has  per- 
sisted until  to-day  in  the  opinions  held  by  a  large 
section  of  the  people  of  the  United  States. 

The    individualistic  theory    of    governmental    non- 
interference resting  on  a  doctrine  of  individual  rights 
has  an  attractive  and  undoubtedly  plausible    appear- 
ance.   Its  weak  point  lies  in  the  fact  that  on  closer 
^  See  C  E.  Merriam,  History  of  American  Political  Theories. 


362  THE   PROVINCE   OF  GOVERNMENT 

examination  it  is  seen  to  contain  inconsistencies  of  a 
serious  character.  To  carry  it  out  fully  and  absolutely 
would  involve  the  adoption  of  an  attitude  at  variance 
with  the  dictates  of  common  sense,  and  one  which  no 
government  has  ever  found  it  practical  to  completely 
accept.  Mill  has  shown  that  the  limitation  of  the 
province  of  government  to  the  prevention  of  force  and 
fraud  "  excludes  some  of  the  most  indispensable  and 
unanimously  recognized  of  the  duties  of  government."  * 
Every  government  I'ecognizes  and  enforces  the  right 
of  private  property,  but  it  can  be  objected  that  this, 
in  the  case  at  any  rate  of  property  in  land,  looks  very 
much  like  positive  interference,  since  the  maintenance 
of  the  claim  of  one  individual  is  equivalent  to  the  ex- 
clusion of  all  others.  In  the  case  of  the  regulation  of 
the  right  of  bequest,  the  fact  of  interference,  though 
universally  approved,  is  still  more  evident.  In  matters 
such  as  the  coining  of  money,  and  the  conduct  of  the 
postal  service,  we  have  instances  of  governmental  action 
in  a  positive  direction  of  such  obvious  convenience 
and  general  utility  as  entirely  to  warrant  the  violation 
of  individual  liberty  involved.  In  other  cases,  as  has 
been  shown  in  detail  by  Professor  Sidgwick,^  there  is 
an  obvious  breach  of  public  morality  in  a  policy  of 
complete  abstention  ;  that  a  government  should  leave 
deserted  children  to  starve,  and  content  itself  with  "not 
interfering  "  with  the  destitute  poor,  is  a  point  of  view 
that  meets  with  almost  universal  condemnation.  The 
positive  duties  of  the  state  in  regard  to  national  edu- 

^  JoLn  Stuart  Mill,  Principles  of  Political  Economy,  bk.  v,  chaps,  i 
and  xi. 

^  Henry  Sidgwick,  Principles  of  Political  Economy,  bk.  iii,  chap.  ii. 


INDIVIDUALISM  363 

cation  are  also  generally  admitted,  although  it  is  hard 
to  find  a  defense  for  such  a  function  of  government  on 
a  purely  individualistic  plan. 

3.  Based  on  a  Theory  of  Profitability ;  the  Doc- 
trine of  Laissez  Faire.  The  view  that  social  justice 
demands  that  the  individual  should  be  left  in  possesssion 
of  his  "  natural  rights  "  may  therefore  be  discarded. 
Far  more  importance  has  attached  to  the  economic  de- 
fense of  individualism,  the  claim  that  it  is  more  profit- 
able for  the  welfare  of  industry  and  commerce  that 
every  one  should  be  left  to  follow  his  own  interest  as  he 
himself  understands  it.  This  is  the  doctrine  that  was 
paramount  in  England  during  the  rise  of  modern  in- 
dustrialism and  which  was  to  a  large  extent  reflected 
in  America  and  elsewhere.  The  cause  of  the  peculiar 
dominance  of  individualism  in  the  direction  of  eco- 
nomic policy  is  to  be  found  partly  in  the  industrial 
circumstances  of  the  time,  partly  in  the  effect  exercised 
upon  public  opinion  by  the  writings  of  the  political 
economists.  During  the  period  between  1750  and 
1850,  England,  and  in  consequence  the  industrial 
world,  underwent  a  series  of  economic  changes  of  such 
fundamental  importance  as  to  earn  the  name  of  the 
Industrial  Revolution.^  The  invention  of  special  ma- 
chinery for  the  textile  industries  (the  spinning  jenny, 
the  mule,  the  power  loom,  the  cotton  gin),  together 
with  the  application  of  steam  as  a  motive  power, 
changed  the  system  of  production  from  its  previously 
restricted  and  domestic  character  and  established  the 

1  The  student  may  with  profit  consult  in  this  connection  Toynbee's 
Industrial  Revolution,  Cunningham's  Growth  of  English  Industry  and 
Commerce,  and  Hohson's  Evolution  of  Modern  Capitalism. 


3G4  THE   PROVINCE  OF   GOVERNMENT 

factory  system.  The  contemporary  improvements  in 
the  smelting  of  iron  ore  (coal  being  used  as  fuel), 
the  imi^rovecl  means  of  transportation  in  the  shape 
of  better  roads,  canals,  and  later  the  introduction  of 
steamboats  (1807),  the  building  of  railroads  (1830) 
enormously  increased  productive  power  and  stimu- 
lated international  exchange  of  products.  At  the 
same  time  the  existing  system  of  government  regu- 
lation of  industry  (the  tolls,  duties,  prohibitions, 
labor  statutes,  etc.)  became  entireh"  out  of  harmony 
witli  the  industrial  situation  and  with  the  need  for 
mobility  of  capital  and  labor  and  opportunity  to  ex- 
ploit foreign  commerce. 

The  inadequacy  and  to  a  great  extent  the  positive 
hindrance  of  the  older  system  of  state  interference 
became  apparent  and  contributed  directly  to  the  rise 
of  modern  political  economy.  Adam  Smith  in  his 
"Wealth  of  Nations  "  (1776),  followed  by  Ricardo,  Mal- 
thus,  Frederic  Bastiat  and  others,  elaborated  the  eco- 
nomic system  of  individual  liberty  as  the  new  guide  of 
legislative  policy.  The  fundamental  argument  of  their 
system  runs  as  follows :  Every  man  is  actuated  in  his 
economic  relations  mainly  by  the  pursuit  of  his  own 
interest.  If  individuals  are  left  free  to  follow  their 
own  choice  in  the  use  of  their  capital,  the  sale  of 
their  labor,  or  the  renting  of  their  property,  the  liberty 
of  each  will  be  in  the  general  interest  of  all.  For  capi- 
tal and  labor  will  by  this  means  be  directed  to  those 
operations  in  which  they  are  most  profitably  employed, 
and  in  which  the  remuneration  for  them  is  in  conse- 
quence the  highest.  A  similar  reasoning  applies  to 
prices  ;  for  if  articles  are  freely  exchanged,  an  increased 


INDIVIDUALISM  365 

demand  for  any  commodity  will  tend  to  raise  the  price 
and  to  call  forth  an  additional  supply,  until  by  the 
operation  of  these  balanced  forces  an  equilibrium  is 
obtained.  International  exchange  of  goods,  if  left  un- 
restricted, will  be  effected  in  the  quantity  and  kind 
most  profitable  to  those  making  the  exchange :  every 
country  will  prefer  to  direct  its  labor  towards  the  pro- 
duction of  those  articles  for  which  it  has  the  srreat- 
est  adaptability  and  will  rely  on  its  trade  with  other 
nations  to  supply  the  commodities  whose  production  it 
finds  relatively  difficult.  We  have  thus  a  general 
economic  harmony  in  which  every  individual  seeks 
to  obtain  the  greatest  advantage  for  himself  to  the 
general  wellbeing  of  all.  In  such  a  state  of  things 
government  interference  becomes  needless  and  necessar" 
rily  noxious.  To  fix  prices  and  wages  by  legislative  act, 
to  assign  a  legal  rate  of  interest  and  prescribe  a  legal 
schedule  of  rent,  to  prohibit  importation  or  hamper  the 
movement  of  labor  from  trade  to  trade  or  from  place 
to  place,  —  all  this  is  contrary  to  a  natural  law  which 
if  left  to  itself  will  coordinate  everything  to  the  best 
advantage. 

The  effect  of  this  teaching  throughout  the  world, 
but  especially  in  Great  Britain,  was  momentous.  It  led 
to  the  repeal  (1813-14)  of  the  long-standing  regulation 
of  labor  under  the  Elizabethan  statute.  It  occasioned 
the  abrogation  of  the  laws  against  free  combination  of 
workingmen  (1824)  and  of  the  laws  of  settlement  re- 
stricting the  movement  of  laborers,  the  repeal  of  the 
navigation  code  (1849)  which  since  the  reign  of 
Charles  II  had  sought  to  limit  the  trade  with  British 
colonies  to  the  ships  of  the  mother  country,  and  the 


366  THE  PROVINCE   OF  GOVERNMENT 

abolition  of  the  trade  monopoly  of  the  East  India  Com- 
pany.  It  found  its  greatest  triumph  in  the  almost  total 
repeal  of  the  protective  duties,  the  abolition  of  the 
corn  laws  (1846),  and  the  establishment  in  the  United 
Kingdom  of  the  system  of  free  trade.  ^  In  America, 
though  the  absence  of  positive  interference  in  the  past 
prevented  the  necessity  of  similar  statutes  of  repeal, 
the  same  ideas  exercised  an  enormous  influence.  The 
writings  of  earlier  American  economists  reflect  with 
what  General  Walker  has  called  a  "  Chinese  fidelity  " 
the  ideas  of  the  English  school ;  and  the  low-tariff 
movement  before  the  war  was  based  on  the  doctrine 
of  free  trade.  In  a  succeeding  chapter  we  shall  have 
occasion  to  refer  to  the  later  criticism  of  natural  lib- 
erty. 

4.  Based  on  a  Biological  Analogy:  the  Sur- 
vival of  the  Fittest.  The  evolutionary  basis  of  the 
individualistic  theory  of  governmental  functions  has 
not  enjoyed  the  same  prominence  as  the  economic  doc- 
trine. We  see  it  especially  in  the  political  philosophy 
of  Herbert  Spencer.  As  we  have  already  noticed  in 
connection  with  the  organic  theory  of  society,  Spencer 
endeavors  to  apply  the  biological  theory  of  evolution 
to  the  interpretation  of  social  and  industrial  progress. 
The  government  is  regarded  as  one  of  the  "  organs  "  of 
society.  It  should  be  intrusted  only  with  that  function 
for  which  it  is  specially  adapted  ;  and  with  the  ad- 
vance of  social  complexity  it  must  lose  in  scope  what 
it  gains  in  intensity.  "  A  function  to  each  organ,  and 
each  organ  to  its  own  function,"  says  Spencer,  "  is  the 
law  of  all  organization.  .  .  .  The  lungs  cannot  digest,  the 

^  A.  MongTedieii,  Histonj  of  the  Free  Trade  Movement. 


INDIVIDUALISM  3G7 

heart  cannot  respire,  the  stomach  cannot  propel  blood. 
.  .  .  Must  we  not  expect  that  with  government  also, 
special  adaptation  to  one  end  implies  nonadaptation  to 
other  ends  ?  "  Spencer,  in  his  earlier  writings  at  any 
rate,  was  willing  to  follow  his  theory  to  its  logical  out- 
come, and  to  erect  the  dogma  of  "  the  survival  of  the 
fittest"  into  a  moral  law.  To  interfere  with  its  opera- 
tion was  to  disturb  the  "  natural "  order  of  progress. 
Should  the  state  aid  the  poor,  the  sick,  and  the  aged, 
it  thereby  contributes  to  the  survival  of  forms  which 
have  no  claim  to  survive,  and  whose  existence  is  a  det- 
riment to  life  in  general.  "  It  seems  hard,"  he  says, 
"  that  a  laborer  incapacitated  by  sickness  from  com- 
peting with  his  stronger  fellows  should  have  to  bear 
the  resulting  privations.  It  seems  hard  that  widows 
and  orphans  should  be  left  to  struggle  for  life  or  death. 
Nevertheless  when  regarded  not  separately,  but  in 
connection  with  the  interests  of  universal  humanity, 
these  harsh  fatalities  are  seen  to  be  full  of  beneficence." 
The  theory  thus  advanced  is  interesting  as  illustrating 
the  extreme  form  which  individualism  was  apt  to  as- 
sume during  the  period  of  its  dominance,  but  hardly 
needs  a  detailed  refutation.  Such  an  argument  would 
apply  equally  well  to  the  suppression  of  private  charity, 
private  aid  to  the  sick,  and  private  maintenance  of  the 
poor  as  well  as  to  government  relief.  If  the  sole  test 
of  fitness  to  survive  is  found  in  the  fact  of  survival, 
then  the  prosperous  burglar  becomes  an  object  of  com- 
mendation, and  the  starving  artisan  a  target  of  con- 
tempt. If  it  is  assumed  that  widows  will  die  unless  the 
government  helps  them,  and  that  usurers  will  grow 
rich   unless  the  government  stops  them,  this  seems  a 


368  THE  PROVINCE  OF  GOVERNMENT 

very  poor  reason  for  saying  that  widows  ought  to  die 
and  that  usurers  ought  to  grow  rich.  Even  taking  the 
evolutionary  argument  on  its  own  ground,  it  can  be 
urged  with  justice  that  as  soon  as  the  government  does 
"  interfere,"  then  its  interference  becomes  one  of  the 
facts  of  the  situation,  one  of  the  operative  forces  to  be 
taken  into  account.  Indeed  the  attempt  to  thus  apply 
the  biological  doctrine  of  evolution  to  the  theory  of  the 
functions  of  government  involves  a  distortion  of  the 
truly  scientific  point  of  view. 

5.  Conflicting  Forces.  Even  in  the  first  half  of  the 
nineteenth  century,  when  the  individualistic  view  of  gov- 
ernment was  dominant  in  both  theory  and  practice,  its 
doctrines  were  not  altogether  unopposed.  The  wonder- 
ful progress  made  in  productive  industry  by  the  fac- 
tory system  operating  under  a  regime  of  natural  liberty 
seemed  the  strongest  possible  argument  in  its  favor.  As 
against  this  the  appalling  distress  of  the  working  classes 
during  the  same  period  plainl}^  called  for  a  more  active 
policy  on  the  part  of  the  state  than  mere  non-interven- 
tion. The  factory  system  under  the  play  of  free  contract 
seemed  inevitably  to  lead  to  oppressive  hours  of  labor,  un- 
wholesome and  brutalizing  conditions  of  work,  and  the 
employment  of  children  of  immature  age  as  a  substi- 
tute for  adult  labor.*  The  degradation  and  insufficient 
remuneration  of  the  workers  as  a  consequence  of  their 
enjoyment  of  "  natural  liberty  "  called  forth  a  strong 
current  of  opinion  in  opposition  to  the  policy  of  non- 
interference. Thomas  Carlyle  in  his  "  Past  and  Pi-esent" 

^  An  account  of  the  miseries  occasioned  by  the  factory  system 
may  be  found  in  Spencer  Walpole's  History  of  England,  vol.  iii,  chap. 


'      INDIVIDUALISM  369 

(1843)  and  "  Latter  Day  Pamphlets  "  (1856) »  denounced 
the  "dismal  science"  of  the  economists  and  ridiculed  the 
doctrine  of  laissez  fa'ire.  The  practical  effect  of  this 
humanitai'ian  movement  is  seen  in  the  legislative  regu- 
lation of  factory  labor  in  Great  Britain  by  acts  of  Par- 
liament of  1833,  1844,  1847,  1850,  and  later  statutes. 
These  measures  which  limit  the  hours  of  employment 
for  women  and  children  are  flatly  at  variance  with  the 
individualistic  principle.  They  have  however  been  sub- 
sequently imitated  in  the  legislation  of  the  great  indus- 
trial states,  including  most  of  the  manufacturing  states 
of  the  American  Union.  The  further  disintegration  of 
the  principle  of  non-interference  will  be  traced  in  the 
third  chapter.  From  what  has  been  said,  however,  it 
may  safely  be  concluded  that  pure  individualism  in  the 
conduct  of  government  is  impossible.  Its  adoption,  in 
complete  form,  runs  counter  to  the  most  instinctive 
impulses  of  humanity  and  would  neglect  governmental 
duties  of  the  most  evident  character.  As  a  matter  of 
political  justice  it  rests  on  a  mechanical  attempt  to 
completely  divorce  individual  and  social  rights.  On  an 
economic  basis  it  overlooks  the  plain  advantages  of 
cooperation  and  regulated  effort.  As  a  scientific  law 
it  will  not  stand  examination. 

READINGS  SUGGESTED 
Mill,  J.  S.,  Principles  of  Political  Economy,  bk.  v,  chap.  xi. 
Ritchie,   D.  G.,   Studies    in  Political  and    Social  Ethics  (1902), 
chap.  iii. 

^  "  Let  us  hope  that  the  leave-alone  principle  has  g-ot  its  apotheo- 
sis. .  .  .  Respectable  Professors  of  the  dismal  science,  your  small  '  Law 
of  God '  is  hung  up  along  with  the  multiplication  table  itself  .  .  .  the 
length  of  your  tether  is  pretty  well  run."    hatter  Day  Pamphlets,  No.  i. 


370  THE  PROVINCE  OF  GOVERNMENT 

M'Kechnie,  W.  S.,  The  State  aud  the  Individual  (1896),  part  ii, 
chaps,  xiv,  xv,  xvi,  xvii. 

FURTHER  AUTHORITIES 

Montague,  F.  C,  Limits  of  Individual  Liberty  (1885). 

Douisthorpe,  W.,  Individualism  (1894). 

Kelly,  E.,  Government,  or  Human  Evolution  (1901), 

Michel,  H.,  L'Idde  de  I'Etat  (1895). 

Sidgwick,  H.,  Elements  of  Politics  (2d  edition,  1897). 

Von  Humboldt,  W.,  Sphere  and  Duties  of  Government  (1791). 

Pollock,  Sir  F.,  History  of  the  Science  of  Politics  (1900). 

Godwin,  W.,  Political  Justice  (1798). 

Bluntschli,  J.  K.,  Geschichte  der  Neueren  Staatswisseuschaft. 
(3d  edition,  1881). 

Blanqui,  J.  A.,  History  of  Political  Economy  in  Europe  (Ameri- 
can translation,  1880). 

Cunningham,  W.,  Growth  of  English  Industry  and  Commerce 
(1903),  vols,  ii  and  iii. 

Spencer,  H.,  The  Man  versus  the  State  (1884). 


CHAPTER  II 

SOCIALISM 

1.  The  Socialistic  Theory  :  its  Destructive  Criticism.  —  2.  The  Con- 
structive Programme  of  Socialism.  —  3.  The  German  Social  Demo- 
crats. —  4.  Socialism  in  England  and  America. 

1.  The  Socialistic  Theory:  its  Destructive 
Criticism.  Entirely  opposed  to  the  individualistic 
conception  of  government  are  the  doctrines  known  as 
socialism,  collectivism,  communism,  and  which,  subject 
to  later  distinction,  may  be  spoken  of  together  as  the 
socialistic  theory  of  the  state.  No  socialistic  state  has 
actually  existed  on  any  except  a  small  and  experimental 
scale.  Socialism  is  therefore  mainly  an  ideal  rather 
than  an  actuality.  But  the  doctrines  it  embodies  have 
appealed  so  strongly  to  so  many  minds,  have  exercised 
such  an  important  influence  on  actual  legislation  and 
practical  politics,  and  contain  in  spite  of  their  falla- 
cious nature  so  much  that  is  of  use  and  inspiration,  as 
to  merit  a  special  treatment. 

Socialistic  theories  present  both  a  destructive  and  a 
constructive  aspect.  They  offer  in  the  first  place  a  criti- 
cism of  the  existing  industrial  system  (whose  basis  is 
individualistic),  with  a  view  to  show  its  inherent  un- 
soundness and  its  inevitable  collapse.  In  the  second 
place  they  propose  to  substitute  for  the  present  state 
a  cooperative  commonwealth  to  be  founded  on  associ- 
ated effort  and  joint  control.  The  critical  part  of  the 
socialistic  doctrine  is  intended  to  show  that  the  indi- 


372  THE   PROVINCE   OF   GOVERNMENT 

vidualistic  system  of  industry  is  wasteful  and  ineffective 
from  an  economic  point  of  view,  and  inequitable  in 
that  the  remuneration  which  falls  to  the  different  classes 
of  workers  is  not  according  to  their  relative  deserts. 
The  more  celebrated  writers  of  the  school,  as  for  in- 
stance the  jireat  German  socialist  Karl  Marx  in  his 
"  Capital,"  which  has  been  called  the  gospel  of  socialism, 
criticise  the  existing  state  from  a  point  of  view  elabo- 
rately historical.  Mark  alleges  that  the  system  of  indi- 
vidual private  property  on  which  it  rests  is  the  outcome 
of  original  aggression  of  the  strong  against  the  weak, 
representing  an  appropriation  of  the  means  of  exist- 
ence by  the  stronger  class,  and  their  consequent  ex- 
ploitation of  the  mass  of  workmen,  who  remain  in  a 
state  of  dependence  spoken  of  as  wage  slavery.  The 
progressive  improvement  of  the  means  of  production 
renders  the  workmen  moi-e  and  more  dependent  on 
those  who  employ  them.  The  appropriation  of  the  land 
by  private  owners  (a  process  practically  complete  in 
older  countries)  renders  it  impossible  for  any  individ- 
ual to  apply  his  labor  directly  to  the  natural  resources 
of  the  earth.  The  increasing  use  of  machinerj^,  although 
vastly  more  efficient  than  the  hand  labor  which  it  has 
replaced,  makes  all  productive  operations  more  and 
more  dependent  on  the  possession  of  capital,  on  the 
ability  to  purchase  machines,  premises,  etc.,  and  to 
forego  the  prospect  of  immediate  reward  for  the  sake 
of  future  profit.  In  such  a  condition  of  things  the 
isolated  laborer  has  nothing  whereon  to  subsist  except 
his  labor  power,  which  he  must  sell  as  best  he  can  to 
the  highest  bidder.  In  the  nature  of  things  he  cannot 
receive  less  for  it  than  what  will  enable  him  to  barely 


SOCIALISM      .  373 

exist,  but  anything  over  and  above  this  will  depend  on 
the  bargain  he  is  able  to  make  with  his  employer. 
Now  this  bargain,  although  nominally  effected  under 
the  rule  of  free  contract,  is  in  reality  a  forced  one. 
The  workman  must  sell  his  labor  or  die  of  starvation. 
But  since  the  increase  of  population,  as  Malthus  and 
others  have  shown,  is  continuous  until  some  point  where 
it  is  actually  checked  by  lack  of  means  of  subsistence, 
the  labor  market  will  always  be  so  crowded  with  labor- 
ers as  to  bring  down  the  level  of  wages  to  that  which 
practically  amounts  to  the  necessaries  of  life.  Should 
wages  rise  above  this,  a  responsive  upward  movement 
of  population  must  bring  them  down  again.  Such  is 
the  famous  "  Iron  Law  of  Wages "  formulated  by 
Lassalle  on  the  basis  of  the  Ricardian  economics.  The 
other  side  of  the  industrial  bargain  is  represented  by 
what  the  employer  receives  from  the  laborer.  This 
consists  each  day  of  a  certain  amount  of  labor  power, 
which  results  in  the  fabrication  of  a  certain  number  of 
useful  commodities  produced  by  the  application  of  the 
day's  labor.  From  the  nature  of  the  bargain  it  does 
not  follow  that  the  commodities  thus  produced  by  the 
workman's  labor  need  be  exactly  equivalent  to  the  com- 
modities given  to  him  through  the  medium  of  his  wages 
by  the  employer.  Indeed,  the  socialistic  writers  assure 
us  the  two  are  by  no  means  equal.  The  workman  pro- 
duces in  the  day  more  than  he  consumes  (for  other- 
wise the  employer  would  have  no  motive  in  undertaking 
production),  and  the  surplus  thus  created  falls  to  the 
lot  of  his  fortunate  employer.  The  laborer  who  sells 
his  labor  under  compulsion  is  compelled  to  submit  to 
this  fraudulent  system.    Such   is  the  doctrine  of  sur- 


374  THE   PROVINCE   OF   GOVERNMENT 

plus  value,  which  is  particularly  associated  with  the 
name  of  Kai-l  Marx,  and  which  is  the  foundation  of 
the  critical  theory  of  socialism.  The  point  in  which  it 
lies  open  to  attack  is  that  it  attributes  to  labor  the 
whole  of  the  productive  result,  and  does  not  allot  a 
share  to  the  machine  which  was  used  in  cooperation 
and  which  is  the  property  of  the  capitalist. 

It  is  impossible  here  to  enter  into  the  economic  dis- 
cussion to  which  this  question  gives  occasion.  It  is  only 
intended  to  show  on  what  grounds  the  socialistic  con- 
tention accuses  the  present  system  of  being  essentially 
inequitable.  Marx  and  the  writers  who  have  followed 
his  lead  are  not  content  with  alleging  the  present  un- 
fairness of  the  method  of  free  contract  and  free  com- 
petition. They  claim  that  with  the  continued  application 
of  machinery  and  improvement  of  production,  the  con- 
tinued appropriation  of  natural  resources  and  constant 
growth  of  population,  the  inequity  of  the  system  will 
be  emphasized,  the  gulf  between  the  capitalists  and 
the  laborers,  the  rich  and  the  poor  will  be  further  and 
further  increased.  Sooner  or  later,  they  maintain,  the 
forces  thus  at  work  will  precipitate  a  vast  social  catas- 
trophe which  can  only  be  avoided  by  altering  the  in- 
dustrial basis  of  our  social  system,  and  substituting 
associated  effort  for  the  economic  anarchy  of  free  com- 
petition. Their  theory  thus  assumes  the  aspect  of  a 
social  prophecy. 

On  more  valid  grounds  the  socialists  draw  attention 
to  the  wastefulness  of  the  individualistic  method  of  pro- 
duction and  distribution.  A  vast  amount  of  work  is 
performed  under  it  that  has  no  social  utility,  a  great 
deal  of  work  is  duplicated  and  even  done  several  times 


SOCIALISM  375 

over  with  no  general  advantage.  Tlie  labor  wasted  in 
competitive  advertising,  and  efforts  of  a  similar  char- 
acter intended  merely  to  divert  business  from  one  per- 
son to  another,  is  the  most  conspicuous  instance  of 
economic  loss  of  the  first  class.  Instances  of  work  that 
is  needlessly  multiplied  are  seen  in  the  case  of  com- 
peting railroads  running  trains  over  parallel  lines,  and 
in  retail  stores  existing  in  considerable  number  where 
one  general  distributing  establishment  could  do  the 
work.  Perhaps  the  simplest  and  best  illustration  of  the 
point  in  question  is  seen  in  the  contrast  between  the 
delivery  of  letters  at  consecutive  houses  and  in  neigh- 
boring streets  by  a  postman  (an  official  under  collec- 
tive management)  and  the  waste  of  time  and  labor 
involved  by  the  spasmodic  delivery  of  milk  and  gro- 
ceries at  various  houses  throughout  an  extensive  dis- 
trict by  the  employees  under  individual  management. 
It  is  in  the  economic  saving  thus  effected  that  the 
amalgamation  of  industry  by  large  corporations  proves 
economically  superior  to  production  and  distribution 
by  small  concerns.  The  large  industrial  companies 
and  departmental  stores  of  the  present  are  standing 
proof  of  the  fact.  These  the  socialists  regard  as  indi- 
cating the  necessary  passing  of  the  older  system  of 
individualism,  the  large  corporations  representing  a 
transition  stage  towards  the  general  industrial  man- 
agement by  the  state. 

2.  The  Constructive  Programme  of  Socialism. 
From  what  has  been  said  it  will  be  easily  seen  that  the 
critical  or  destructive  side  of  socialistic  theory  contains 
a  great  deal  that  is  true  and  extremely  useful  in  indi- 
cating the  proper  direction  of  measures  of  social  reform. 


376  THE   PROVINCE   OF   GOVERNMENT 

The  other  side  of  socialism,  its  constructive  programme 
for  a  cooperative  commonwealth,  is  much  weaker  and 
cannot  be  worked  out  in  detail  without  meeting  with 
hostile  criticism  from  socialists  themselves.  In  general 
terms  the  programme  of  socialism  is  to  substitute  gov- 
ernment management  for  private  management,  to  put 
all  productive  industry  under  state  administration,  thus 
making  the  state  the  sole  employer,  and  putting  all 
the  workers  in  the  employ  of  the  state.  On  this  system 
the  functions  of  government  would  extend  to  the  whole 
domain  of  economic  operations  ;  it  would  manage  all 
the  railroads,  the  factories,  the  mines,  and  the  farms. 
In  place  of  competing  retail  stores,  government  distrib- 
uting houses  would  be  established  for  delivering  to  each 
citizen  his  share  of  the  national  production.  Individ- 
uals would  still  have  a  property  right  to  the  things  they 
actually  intended  to  use,  —  houses,  food,  clothes,  etc., — 
but  all  the  means  of  production  would  be  nationalized. 
The  inherent  impracticability  of  such  a  system  be- 
comes evident  when  one  turns  from  the  general  scheme 
of  production  to  the  question  of  distribution,  —  the 
method  according  to  which  the  wages  of  the  workers 
under  the  socialist  state  are  to  be  managed.  On  this 
point  there  is  a  great  variety  of  opinion.  The  most  ex- 
treme view  is  foimd  in  those  writers  who  recommend  that 
everything  produced  should  be  connnon  property,  all 
persons  taking  from  the  general  stock  according  to  their 
needs.  La  mise  au  tas,  la  prise  au  tas,  ran  the  for- 
mula adopted  by  Proudhon,  the  French  anarchistic 
writer.  Such  a  system  would  of  course  leave  no  such 
thing  as  individual  wages,  the  remuneration  of  each 
laborer  being  according  to  his  needs,  not  according  to 


SOCIALISM  377 

his  efficiency.  Somewhat  similar  to  this  is  the  sugges- 
tion for  a  general  equality  of  wages,  all  persons  being 
compelled  to  work  for  an  equal  number  of  hours  (or 
a  number  of  hours  equalized  according  to  the  rela- 
tive attractiveness  or  repulsiveness  of  the  trade)  and 
all  receiving  the  same  remuneration.  This,  it  will  be 
remembered,  is  the  solution  of  the  wages  j)roblem  offered 
by  Edward  Bellamy  in  his  "  Looking  Backward,"  a  pre- 
sentation of  the  socialist  state  under  the  form  of  a 
romance,  which  attracted  at  the  time  of  its  publication 
(1888)  a  phenomenal  attention.  To  all  except  the 
most  sanguine  visionaries  any  socialistic  scheme  in- 
volving equality  of  wages  is  totally  impracticable.  It  is 
evident  that  under  such  an  arrangement  the  individual 
stimulus  to  work  would  be  gone  and  the  efficiency  of 
production  hopelessly  impaired  by  idleness.  Bellamy 
and  others  attempt  to  argue  that  under  the  improved 
conditions  brought  by  socialism,  the  elevation  of  the 
general  moral  tone  would  severely  discountenance  any 
such  shirking  of  work,  and  that  with  the  shortened  hours 
of  labor  possible  under  cooperative  work  there  would  be 
no  aversion  to  labor  on  the  part  of  the  individual.  Such 
an  argument  is  altogether  of  an  idealistic  character, 
and  contains  the  most  monstrous  assumptions  of  a  sud- 
den and  mechanical  renovation  of  human  nature,  so 
sweeping  as  to  beg  the  whole  question  of  social  reform. 
The  argument  is  also  in  contradiction  to  the  method 
(adopted  by  Bellamy)  of  lengthening  or  shortening  the 
hours  of  labor  in  any  trade  in  order  to  attract  or  repel 
workers  according  to  the  needs  of  any  particular  moment. 
This  plan  itself  rests  on  the  assumption  of  an  aversion 
to  work. 


378  THE  PROVINCE   OF   GOVERNMENT 

We  come  finally  to  the  scheme  of  industrial  organiz- 
ation that  may  be  described  as  socialism  proper,  in  op- 
position to  communism  and  collectivism.  In  this  case 
wages  are  to  be  awarded  to  each  laborer  according  to  his 
efficiency.  The  plan  supposes  a  hierarchy  of  officials 
(on  the  elective  principle)  who  control  the  productive 
process,  drafting  the  workers  from  trade  to  trade  as 
may  be  needed,  and  paying  salaries,  making  promotions, 
etc.,  according  to  the  industrial  efficiency  of  the  workers. 
The  pay  of  a  good  workman  would  be  high,  of  an  inef- 
ficient or  idle  workman  low.  The  scheme  would  be 
almost  perfect,  if  one  could  assume  the  official  per- 
sons who  assign  places,  salaries,  and  promotions  to  be 
omniscient  and  impeccable.  But  the  possibilities  of 
corruption,  the  play  of  interested  motives,  intrigue, 
personal  spite,  and  unfairness  of  all  kinds  would  be  so 
appalling  under  present  conditions  of  public  morality 
as  to  altogether  remove  such  suggestions  from  the 
domain  of  the  practicable.  If  all  industry  were  forcibly 
appropriated  by  the  government  and  private  business 
prohibited,  the  individual  who  fell  under  the  odium  of 
the  "  bosses  "  and  "  cliques  "  that  might  very  j^ossibly 
control  such  a  government,  would  feel  himself  to  be 
under  a  despotism  from  which  the  organization  offered 
no  escape. 

3.  The  German  Social  Democrats.  Socialism, 
however,  has  more  than  a  merely  theoretical  aspect. 
On  the  continent  of  Europe  it  has  made  itself  a  force  in 
practical  politics  of  the  highest  importance,  and  social- 
ist political  parties  have  of  late  assumed  some  impor- 
tance in  England  and  the  United  States.  But  it  is  in 
Germany  especially  that  the  socialist  propaganda  has 


SOCIALISM  379 

met  with  success,  and  has  exercised  a  powerful  influence 
on  the  legislative  policy  of  the  government.  The  evo- 
lution of  socialism  in  Germany  is  not  only  interesting 
of  itself,  but  is  singularly  instructive  in  the  light  it 
throws  upon  the  probable  future  of  socialist  political 
parties,  and  the  extent  to  which  they  are  likely  to  suc- 
ceed in  modifying  the  attitude  of  existing  governments. 
It  arose,  as  also  in  France,  in  the  earlier  part  of  the  nine- 
teenth century,  assuming  at  first  an  altogether  ideal  and 
Utopian  form.'  The  earlier  socialists,  or  communists 
as  they  were  at  first  called,  greatly  underestimated  the 
enormous  difficulties  that  stand  in  the  path  of  social 
reform.  Attributing  all  existing  evils  to  the  prevalence 
of  the  capitalistic  system,  they  presumed  that  its  imme- 
diate abolition  in  favor  of  state  control  would  effect  an 
almost  immediate  regeneration  of  mankind.  The  origi- 
nal programme  of  socialism,  when  it  arrived  at  the  stage 
of  having  a  political  programme,  consisted  in  the  un- 
compromising destruction  of  capitalistic  industry.  This 
was  the  attitude  of  the  socialist  wing  of  the  revolution- 
ists that  for  the  time  being  overthrew  monarchical  gov- 
ernment in  France  in  1848,  and  threatened  its  existence 
in  the  German  convulsions  of  the  some  year.  After  the 
collapse  of  that  great  movement  the  German  socialists 
fell  into  opposing  groups,  —  some  of  them  still  aiming 
at  a  general  universal  revolution,  and  attempting  to  or- 
ganize on  a  cosmopolitan  basis,  others  recognizing  the 
present  national  state  as  their  starting-point,  and  de- 
sirous of  gaining  their  ends  by  constitutional  reform. 

■'•  Of  the  initial  period  of  modern  socialism  in  Germany,  Weitling's 
Die  Welt  wie  sie  ist  und  sein  soil  (1838)  and  in  France  the  writings  of 
St.  Simon  and  Fourier  may  be  cited  as  illustrative. 


380  THE   PROVINCE   OF   GOVERNMENT 

By  the  latter  plan  socialism,  instead  of  fighting  itself 
into  power,  would  vote  itself  into  power.  The  greatest 
influence  during  this  period  was  exercised  by  Ferdi- 
nand Lassalle,  who  organized  a  German  Workingmen's 
Association,  and  advanced  as  an  immediate  programme 
the  use  of  state  credit  for  the  foundation  of  working- 
men's  productive  associations,  which  should  act  as  the 
beffinninir  of  a  socialist  state.  The  secession  of  the 
revolutionary  anarchists,  the  collapse  of  the  interna- 
tional aspect  of  the  movement,^  aided  the  growing 
tendency  of  German  socialism  towards  a  national  con- 
stitutional form  whose  immediate  aim  should  be  the 
attainment  of  practical  measures,  rather  than  the  com- 
plete realization  of  the  ideal  state.  At  a  congress  at 
Gotha  in  1875,  a  general  union  of  the  socialist  party 
was  effected  on  a  basis  of  compromise.  In  the  pro- 
gramme there  adopted  the  "abolition  of  the  system  of 
wage  labor  "  was  indicated  as  the  ideal  of  socialism,  but 
certain  immediate  measures  were  proposed  "in  order  to 
prepare  the  way  for  the  solution  of  the  social  question." 
In  the  period  following  (1878-1890)  the  party  un- 
derwent a  severe  persecution  at  the  hands  of  the  Ger- 
man imperial  government,  which  did  not,  however, 
drive  it  into  revolutionary  measures.  At  a  congress 
held  at  Erfurt  (1891)  a  revised  platform  was  adopted, 
which  became  the  official  programme  of  the  German 
social  democratic  party.  It  demands  universal,  equal, 
and  direct  suffrage  by  ballot  (extending  the  franchise 

^  Karl  Marx  in  1864,  while  a  refugee  in  London,  founded  the  Inter- 
national Workingmen's  Association,  which  aimed  at  social  revolution 
■without  the  help  of  existing  governments ;  the  movement  collapsed 
after  the  Franco-Prussian  War. 


SOCIALISM  381 

to  women),  proportional  representation,  direct  legisla- 
tion, substitution  of  a  universal  militia  for  a  standing 
army,  freedom  of  the  press  and  of  meeting,  free  justice, 
a  gi-aduated  income  tax,  improved  factory  legislation, 
statutory  limitations  of  the  hours  of  labor.  With  these 
immediate  demands  are  coupled  a  general  denunciation 
of  the  evils  of  capitalistic  industry.  But  it  is  asserted 
that  the  "  struggle  of  the  working  classes  against  capi- 
talistic exploitation  must  of  necessity  be  a  political 
struggle,"  ^  and  it  will  be  seen  that  the  present  de- 
mands of  the  party  include  nothing  that  is  not  asked 
by  various  radical  groups  in  Anglo-Saxon  counti-ies, 
except  perhaps  the  item  of  a  legal  labor  day.  On  this 
basis  the  progress  of  the  Social  Democrats  in  point  of 
numbers  has  been  extremely  rapid.  At  the  foundation 
of  the  German  Empire  they  elected  only  two  members 
to  the  Reichstag ;  in  1893  they  elected  forty-four  mem- 
bers, representing  1,876,738  votes,  and  in  the  election 
of  1903  succeeded  in  returning  eighty-one  members, 
representing  3,011,114  votes.  On  the  other  hand  it  is 
generally  conceded  that  the  socialist  party  (including 
therein  those  who  vote  for  socialist  candidates)  is  not 
entirely  made  up  of  socialists.  It  has  become  to  a  large 
extent  the  party  of  discontent  and  of  standing  opposi- 
tion to  the  imperial  govei'nment,  and  is  by  no  means 
to  be  looked  upon  as  entirely  made  up  of  persons  be- 
lieving in  the  practicability  of  a  cooperative  state. 

In  all  the  Continental  countries  one  of  the  vexed 
questions  of  pi-esent  socialism  is  the  extent  to  which 
the  earlier  doctrines  of  the  socialistic  theory  are  to  be 

^  A  translation  of  the  text  of  the  Erfurt  programme  may  be  found 
in  Ely's  Socialism  and  Social  Reform,  appendix  i. 


382  THE   PROVINCE   OF  GOVERNMENT 

maintained.  Some  of  the  socialists  tenaciously  adhere 
to  the  original  tenets  of  Karl  Marx,  and  persist  in  be- 
lieving in  the  imminence  of  the  social  cataclysm.  This, 
however,  in  view  of  the  evident  improvement  in  the  lot 
of  the  working  classes  during  the  nineteenth  century, 
during  which  the  actual  wages  of  skilled  labor  have 
been  about  doubled,  is  an  expectation  that  seems  be- 
lied. A  great  many  socialists  believe  in  the  progressive 
alteration  of  present  conditions  with  a  view  to  immediate 
social  amelioration  to  the  extent  actually  practicable. 
These  "  revisionists,"  as  they  are  called,  were  voted 
down  at  the  recent  international  congress  of  socialists 
at  Amsterdam  (1904),  and  a  set  of  resolutions  adopted 
reaffirming  the  inveterate  hostility  of  the  socialists  to 
the  system  of  capitalistic  production.  But  in  spite  of 
this  it  may  with  authority  be  affirmed  that  the  greater 
number  of  socialists  now  favor  the  amelioration  of  pre- 
sent conditions  rather  than  their  complete  overthrow. 
The  socialists,  though  extremely  numerous  in  France  and 
Italy,  have  nowhere  else  as  much  cohesion  and  imity 
of  operation  as  in  Germany.  In  France  in  particular 
they  are  divided  into  opposing  factions.  Some  of  them, 
under  the  name  of  "  collectivists,"  are  of  the  Marxian 
type,  favoring  a  complete  economic  control  exercised 
by  a  centralized  government ;  others  advocate  the 
adoption  of  a  socialistic  programme  by  the  develojv 
raent  of  municipal  control ;  others  again,  the  "  possi- 
bilists,"  are  inclined  to  accept  any  measures  of  ameli- 
oration that  can  be  obtained  and  to  cooperate  with  any 
existins:  jjovernments  that  will  meet  tlieir  views. 

4.   Socialism  in   England  and  America.   Vari- 
ous socialistic  associations  have  been   formed  in  En*;- 


SOCIALISM  383 

land, — the  Social  Democratic  Federation  (1881),  the 
Socialist  League  (1884),  now  extinct,  and  the  Fabian 
Society.  The  latter  has  contained  among  its  members 
many  persons  of  marked  talent,  —  the  two  Webbs,  ^  Mrs. 
Annie  Besant,  and  others, —  and  the  collection  of  pa- 
pers published  by  it  under  the  title  of  "  Fabian  Essays 
in  Socialism "  has  had  an  extensive  sale.  The  pro- 
gramme of  the  society  consists  in  the  gradual  introduc- 
tion of  socialism,  recognizing  the  need  of  a  transitional 
stage  in  passing  from  capitalistic  industry  to  collective 
management.  In  the  United  States  there  have  been 
numerous  examples  of  practical  attempts  at  the  reali- 
zation of  collective  management  in  the  foundation  of 
various  communities  in  which  the  principle  of  associated 
labor  and  common  ownei'ship  was  adopted.^  Of  these 
the  Rappites  of  New  Harmony  (later  of  Economy)  and 
the  communists  of  Zoar,  Amana,  and  Oneida  are  famil- 
iar examples.  These  experiments  have  always  proved 
failures,  except  where  the  main  motive  was  religious 
and  not  economic,  and  where  the  community  of  pro- 
perty was  only  incidental  to  aspirations  of  a  higher 
character.  Of  late  years  socialism  has  appeared  in 
the  United  States  in  the  form  of  political  parties 
which  are  developing  a  considerable  voting  power. 
The  Socialist  Labor  party  and  the  Social  Democratic 
l^arty  are  the  most  important.  In  the  presidential  elec- 
tions of  1904  some  600,000  votes  were  given  to  social- 
ist candidates.    But  in  the  case  of  both  these  parties, 

^  Sidney  and  Beatrice  Webb,  well  known  as  joint  authors  of  His- 
tory of  Trade-Unionism,  etc. 

2  Consult  in  this  connection  Charles  Nordhoff,  The  Communistic  So- 
cieties of  the  United  States. 


384  THE  PROVINCE  OF  GOVERNMENT 

though  they  preface  their  platforms  with  general  state- 
ments in  favor  of  the  nationalization  of  production, 
special  stress  is  laid  on  the  immediate  demands  for  state 
railroads,  municipal  control  of  lighting  plants  and  street 
cars,  a  graduated  income  tax,  etc.  They  thus  illustrate 
in  their  practical  pi-ogramme  a  very  close  similarity 
with  radical  political  parties  whose  basis  is  not  social- 
istic. The  present  demands  of  socialist  parties  both  in 
America  and  in  Europe  are  ver}^  closely  allied  to  those 
advanced  by  the  Populists,  the  French  Radicals,  and 
the  British  Independent  Labor  j^arty.  The  funda- 
mental basis  of  radicalism  is  individualistic  and  hence 
represents  in  theory  the  opposing  extreme  from  the 
socialistic  conception  of  the  state.  But  the  progressive 
evolution  of  modern  socialism  is  carrying  it  further  and 
further  from  its  original  ideal.  The  latter  many  social- 
ists admit  to  be  Utopian  and  unattainable,  and  many 
persons  not  socialists  would  concede  that  the  theoreti- 
cal ideal  of  a  cooperative  commonwealth  may  exercise 
a  formative  influence  on  the  direction  of  actual  legis- 
lation. The  aims  of  the  socialists  in  connection  with 
municipal  government  we  shall  discuss  in  the  next 
chapter. 

READINGS  SUGGESTED 
Kirkup,  T.,  History  of  Socialism  (1892),  chaps,  i,  vii,  xii. 
Ely,  R.,  Socialism  and  Social  Reform,  part  i  (1894). 
Scliaffle,  A.,  Quintessence  of  Socialism  (translation  of  8th  Ger- 
man edition,  1889). 

FURTHER  AUTHORITIES 
Bliss,  W.  D.  P.,  Handbook  of  Socialism. 
Rae,  J.,  Contemporary  Socialism  (2d  edition,  1891). 
Ely,  R.,  French  and  German  Socialism  (1883). 


SOCIALISM  385 

Bellamy,  E.,  Looking  Backward  (1890). 

Marx,  K.,  Capital  (1867). 

Webb,  S.  and  B.,  History  of  Trade-Unionism. 

Nordhoff,  C,  Communistic  Societies  of  the  United  States  (1878). 

Fohlmann,  R.,  Geschichte  des  antiken  Kommunismus  and  Sozi- 

alismus  (1893). 
Sch'affle,  A.,  Impossibility  of  Social   Democracy.     (Authorized 

English  edition,  1892). 
Zenker,  E.  V.,  Anarchism  (1897). 


CHAPTER  III 

THE  MODERN  STATE 

1.  The  New  Environment. — 2.  Theory  of  Protection  to  Industry.  —  3. 
Modern  Protective  Tariffs.  —  4.  Interference  with  Competitive  Prices; 
Trust  and  Railroad  Legislation.  —  5.  Government  Interference  on 
Behalf  of  the  Working  Class ;  Factory  Laws,  State  Insurance,  and 
Pensions.  —  6.  Municipal  Control. 

1.  The  New  Environment.  We  shall  now  consider 
in  conclusion  the  actual  functions  exercised  by  modern 
governments  and  the  existing  state  of  opinion  in  refer- 
ence to  the  economic  duties  of  the  state.  The  practical 
operation  of  all  modern  civilized  governments  remains, 
in  a  certain  sense,  on  an  individualistic  basis.  By  this  is 
meant  that  there  is  no  state  in  which  the  principle  of 
common  property  in  the  means  of  production,  or  of 
equality  of  wages,  or  of  universal  employment  by  the 
government,  is  adopted.  Each  individual  is  still  left 
to  earn  his  own  living  by  his  own  efforts,  and  the 
amount  of  wasres  remains  as  a  matter  of  free  contract 
between  employers  and  employed.  But  subject  to  this 
general  reservation,  it  can  easily  be  shown  that  the 
practice  of  modern  governments  is  further  than  ever 
removed  from  complete  individualism,  and  that  the 
tendency  towards  state  interference  with  industry  is 
everywhere  on  the  increase.  We  have  but  to  consider 
the  public  policy  of  our  time  in  reference  to  the  regu- 
lation of  railroads,  of  monopolies  and  tariffs,  to  realize 
that  the  former  reliance  upon  the  principle  of  unre- 


THE  MODERN  STATE  387 

stricted  competition  and  individual  self-interest  has 
been  completely  lost.  This  obvious  change  in  public 
policy  has  been  accompanied  by  an  equally  evident 
change  in  public  opinion.  The  economists  and  political 
philosophers  of  the  present  time  are  prepared  to  defend 
a  degree  of  state  interference  quite  at  variance  with 
the  doctrines  of  their  predecessors.  The  reason  for  this 
remarkable  alteration  both  in  theory  and  practice  is 
found  in  the  altered  circumstances  of  our  industrial 
environment.  We  have  seen  in  a  previous  chapter 
that  the  rapid  expansion  of  industry  under  the  stimu- 
lus of  the  new  mechanical  processes  of  the  industrial 
revolution  seems  to  demand  its  liberation  from  all 
forms  of  governmental  restraint,  and  that  the  conse- 
quent removal  of  the  standing  impediments  to  the  free 
movement  of  capital  and  labor  was  accompanied,  at  any 
rate  as  far  as  the  total  volume  of  production  was  con- 
cerned, with  marked  success.  But  it  has  been  seen  also 
that  in  reference  to  the  welfare  of  the  laboring  class 
the  system  of  free  competition,  particularly  in  regard 
to  the  work  of  women  and  children,  was  open  to  serious 
objection.  The  further  development  of  modern  indus- 
try has  emphasized  many  other  disadvantages  attend- 
ant upon  unrestricted  competition.  The  more  import, 
ant  of  these  may  be  briefly  discussed  in  theoretical 
form,  after  which  we  shall  proceed  to  the  treatment  of 
the  actual  legislative  policy  adopted  under  the  circum- 
tances. 

The  theory  of  government  functions  laid  down  by 
Smith,  Ricardo,  and  the  classical  economists  was 
essentially  a  cosmopolitan  theory.  It  was  intended  to 
show  that  if  wages,  prices,  and  trade  were  left  to  the 


388  THE  PROVINCE  OF  GOVERNMENT 

free  play  of  individual  bargaining,  the  self-interest  of 
each  would  promote  the  general  interest  of  all.  Each 
individual  would  be  enabled  to  apply  his  labor  and  his 
capital  to  the  particular  branch  of  industry  in  which 
he  might  expect  the  highest  remuneration.  In  the  same 
way  each  nation  would  be  enabled  to  concentrate  its 
production  in  the  directions  for  which  it  had  the  great- 
est natural  advantages,  an  unrestricted  trade  with  its 
fellow  nations  supplying  the  commodities  not  produced 
at  home.  As  applied  to  the  conditions  prevalent  in  Eng- 
land in  Ricardo's  day,  the  theory  of  international  rela- 
tions is  generally  admitted  to  have  been  correct.  There 
could  be  no  doubt  as  to  England's  paramount  advan- 
tages at  that  time  in  nearly  all  lines  of  manufacturing 
industry.  But  the  attempt  to  apply  the  free-trade 
theory  to  other  nations  and  to  later  times  has  by  no 
means  met  with  a  general  acceptance.  In  the  first  place 
it  is  objected  that  the  acceptance  of  the  policy  of  free 
trade  militates  against  national  self-sufficiency  and 
independence.  In  strict  accord  with  the  Ricardian 
doctrine  it  will  follow  that  if  a  nation  has  especial 
advantages  for  agriculture  and  relatively  poor  facili- 
ties for  manufacture  it  will,  apart  from  government 
interference  with  the  "  natural "  course  of  things,  rely 
upon  its  neighbors  for  manufactured  articles,  and  de- 
vote its  energies  mainly  to  agriculture.  Conversely  a 
nation  with  special  facilities  for  manufacture,  but  poor 
in  agricultural  resources,  will  be  led  to  leave  its  land 
untilled  and  to  obtain  its  food-supply  by  exchanging 
its  manufactured  articles  for  agricultural  products.  It 
is  clear  that  in  these  cases  the  welfare  of  each  nation 
is  absolutely  dependent  on  its  being  able  to  carry  on 


THE  MODERN  STATE  389 

an  uninterrupted  trade  for  the  supply  of  Its  particular 
needs.  Should  such  intercourse  be  interrupted  by  war, 
either  between  itself  and  the  nation  it  trades  with  or 
between  the  latter  and  an  outside  power,  its  economic 
existence  is  at  stake.  The  economic  gain  afforded  by 
its  trade  in  time  of  peace  is  thus  offset  by  its  economic 
feebleness  in  time  of  war.  It  is  to  be  especially  ob- 
served that  it  is  not  only  a  war  of  its  own  that  it  must 
apprehend,  but  a  war  undertaken  by  an  outside  nation 
on  which  it  is  in  some  degree  economically  dependent. 
On  this  ground  it  is  argued  that  state  interference  in 
the  shape  of  protection  to  manufactures  (or  to  agricul- 
ture) is  justified  in  so  far  as  may  be  needed  for  estab- 
lishing a  proper  quantity  of  economic  independence. 
Even  Adam  Smith  in  his  approval  of  the  navigation 
acts^  admits  the  validity  of  considerations  of  a  similar 
character,  and  the  argument  is  generally  admitted  by 
present  economists  to  be  of  weight.  There  is  a  con- 
siderable divergence  of  opinion  as  to  the  extent  to 
which  economic  independence  should  be  attempted.  It 
is,  however,  universally  admitted  that  for  the  manufac- 
ture of  the  munitions  of  war  no  state  should  permit 
itself  to  be  dependent  on  the  outside  world. 

2.  Theory  of  Protection  to  Industry.  The  fore- 
going is  only  one  of  the  many  grounds  on  which  state 
interference  in  the  form  of  protective  duties  has  been 
advocated.  More  familiar,  especially  in  America,  is  the 
line  of  reasoning  known  as  the  "  infant  industry"  argu- 
ment. It  is  claimed  that  the  resources  and  circum- 
stances of  a  country  may  be  such  that  while  the  initial 
expense  of  setting  a  manufacturing  system  on  foot  in 

^  Wealth  of  Nations,  bk.  iv. 


390  THE  PROVINCE  OF  GOVERNMENT 

the  face  of  foreign  competition  offers  insuperable  diffi- 
culties for  the  industrial  producer,  yet  such  a  system 
once  properly  established  would  be  of  a  sufficiently 
profitable  character  to  compete  on  equal  terms  with  the 
imports  of  foreign  manufactures.  In  this  case,  it  is  urged, 
the  government  should  impose  a  temporary  duty  which 
may  make  it  possible  for  manufactures  to  be  estab- 
lished, and  which  may  later  on  be  removed.  The  tempo- 
rary help  thus  afforded  by  state  interference  will  enable 
the  community  to  advance  to  a  higher  stage  of  indus- 
trialism, and  better  to  exploit  the  natural  resources 
of  its  territory.  This  argument  has  met  with  especial 
support  from  American  economists.  The  weak  point  in 
connection  with  the  infant-industry  argument  is  that  in 
countries  where  duties,  of  this  kind  have  been  adopted, 
the  industries  in  question  have  never  outgrown  their 
infancy,  as  far  as  the  protective  tariff  is  concerned.  In 
practice  the  duties  have  not  only  not  been  removed  but 
have  been  increased. 

A  further  ground  of  argument  in  favor  of  protec- 
tive interference  arises  out  of  the  cosmopolitan  charac- 
ter of  the  free-trade  doctrine.  Assuming  a  complete  in- 
ternational regime  of  free  trade,  the  system  might  tend 
towards  the  denudation  and  impoverishment  of  the  less 
favored  nations  in  favor  of  those  possessing  the  great- 
est resources  and  offering  the  best  conditions  for  man- 
ufacture. The  Ricardian  theory  presupposes  that  each 
nation  will  occupy  itself  with  the  pursuits  for  which  its 
circumstances  are  best  suited.  It  is  admitted'  that  one 
nation  may  be  worse  suited  in  every  respect  than  an- 

^  See  John  Stuart  Mill,  Principles  of  Political  Economy,  bk.  iii,  chaps, 
xvii,  xviii. 


THE  MODERN  STATE  391 

other  and  yet  continue  to  trade  with  it,  because  the 
people  of  the  most  favored  nation  will  prefer  to  devote 
themselves  to  the  occupation  in  which  their  advantage 
is  greatest.  Thus  let  us  suppose  that  Portugal  can  pro- 
duce both  wine  and  corn  with  less  labor  than  Morocco  ; 
and  let  it  also  be  supposed  that  in  the  production  of 
corn  the  advantage  is  but  slight,  whereas  in  the  case  of 
wine  the  advantage  is  enormous ;  the  people  of  Portu- 
gal will  still  prefer  to  get  their  corn  from  Morocco,  al- 
though produced  there  at  greater  pains  than  in  Portu- 
gal, because  the  quantity  of  wine  they  exchange  for  it 
is  produced  at  still  less  cost.  On  this  ground  the  classi- 
cal economists  undertook  to  show  that  two  nations 
might  trade  with  mutual  advantage  even  where  the  re- 
sources of  the  one  were  superior  in  every  respect  to 
those  of  the  other.  Such  an  argument  however  takes  it 
for  granted  that  the  capital  and  labor  of  each  country 
will  remain  within  its  own  borders,  and  not  emigrate  to 
the  more  favored  territory.  Why  should  it  not  be  sup- 
posed that  with  free  intercourse  and  open  markets,  the 
capital,  and  what  is  far  more  important,  the  laborers  of 
less  favored  communities  would  emigrate  to  places  bet- 
ter suited  for  manufacture?  It  will  be  noted  that  this 
supposed  denudation  of  poorer  countries  contains  no- 
thing at  variance  with  the  free-trade  theory  itself.  The 
emigration  of  persons  and  capital  under  these  circum- 
stances would  doubtless  increase  the  gross  total  of  the 
world's  production,  and  would  add  something  to  the 
general  productive  efficiency  of  mankind.  But  it  would 
assuredly  not  increase  the  gross  total  of  the  productive- 
ness of  the  country  out  of  which  they  emigrated.  The 
question  then  is,  whether  the  adoption  of  protective 


392  THE  PROVINCE  OF  GOVERNMENT 

duties  in  aid  of  home  manufacture  can  prevent  the  de- 
sertion of  poorer  for  richer  countries.  It  may  be  argued 
that,  even  after  the  duties  are  imposed,  the  individual 
capitalist  or  laborer  will  still  find  it  more  profitable  to 
use  his  capital  and  labor  in  the  more  favored  country, 
and  that  the  tendency  to  emigration  of  both  of  these 
is  independent  of  protective  interference.  There  are, 
however,  a  great  many  people  in  every  country  whose 
remaining  there  is  not  altogether  a  matter  governed  by 
economic  motives  ;  some  will  remain  from  sentimental 
reasons  of  attachment  and  patriotism,  others  because 
their  material  fortunes  are  already  amply  sufficient. 
Under  a  protective  system  the  manufactured  commod- 
ities consumed  by  these  persons  must  needs  be  made 
at  home  and  necessitate  the  continuing  within  the  state 
of  a  sufficient  manufacturing  population  for  the  pur- 
pose. Such  manufacture  will,  under  these  premises,  be 
conducted  at  an  economic  loss :  the  persons  of  means 
thus  residing  in  the  country  will  have  to  pay  more  for 
what  they  consume  than  if  content  to  import  it  from 
abroad  and  to  let  the  manufacturing  pojjulation  depart. 
But  the  upshot  will  be  that  a  larger  number  of  citizens 
remain  within  the  state  than  would  have  remained 
without  the  state  interference  in  the  form  of  protective 
duties.  It  is  plain,  of  course,  that  the  applicability  of 
such  an  argument  depends  on  the  particular  circum- 
stances of  any  country  at  any  time.  The  situation  of 
Great  Britain  at  the  present  time  naturally  suggests  it- 
self for  examination  in  this  connection.  It  may  conceiv- 
ably be  the  case  that  the  facilities  both  for  agriculture 
and  for  manufacture  are  now  inferior  in  Great  Britain 
to  those  of  the  United  States.    The  progressive  appli- 


THE   MODERN   STATE  393 

cation  of  water  power  and  electricity  as  motive  forces 
may  further  emphasize  this  advantage.  Under  such 
circumstances  according  to  the  Ricardian  doctrine  the 
laboring  people  of  England  ought,  each  consulting  his 
own  advantage,  to  come  to  live  in  the  United  States. 
There  would  remain  in  England  the  persons  of  means, 
who  would  invest  their  capital  in  the  manufacturing 
industries  of  America,  and  draw  from  that  continent 
the  various  commodities  of  their  consumption.  The 
case  is  purely  hypothetical  and  may  be  perfectly  at  vari- 
ance with  present  facts.  But  it  seems  to  show  that,  in 
pure  theory,  the  system  of  free  trade  is  not  of  necessity 
identical  with  national  greatness.  To  grant  this  and  to 
contend  that  it  is  always  consistent  with  the  general 
welfare  of  the  world,  even  where  fatal  to  the  welfare  of 
a  particular  nation  as  such,  would  be  thought  by  many 
a  quite  insufficient  argument. 

3.  Modern  Protective  Tariffs.  Acting  on  the 
general  considerations  thus  stated,  almost  all  of  the 
modern  industrial  states  have  seen  fit  to  adopt  a  system 
of  protective  duties  for  the  promotion  of  domestic  man- 
ufacture. Such  legislation  in  the  United  States  was 
indeed  adopted  in  a  mild  form  at  the  very  opening 
of  the  history  of  the  present  Constitution.*  During  the 
first  half  of  the  nineteenth  century,  the  rival  theories 
of  free  trade  and  protection  struggled  for  mastery.  The 
high  tariff  of  1828,  the  "  tariff  of  abominations,"  was 
followed  by  the  greatly  reduced  tariff  of  1846,  a  meas- 
ure partly  due  to  the  influence  of  the  free-trade  cam- 
paign in  England,  and  by  the  reciprocity  treaty  with 

*  See  Schouler,  History  of  the  United  States,  vol.  i ;  Taussig,  Tariff 
History  of  the  United  States. 


394  THE   PROVINCE  OF   GOVERNMENT 

Canada  in  1854.  But  since  the  Civil  War  the  system  of 
protection  to  national  industries  has  been  strengthened, 
and  extended  to  practically  the  whole  range  of  indus- 
try. The  Dingley  tariff  of  1897,  while  admitting  free 
of  duties  a  large  number  of  raw  materials  for  use  in 
manufacture,  imposed  on  manufactured  articles  duties 
amounting  in  some  cases  to  more  than  fifty  per  cent. 
The  Dominion  of  Canada,  though  granting  a  special 
rebate  of  one  third  of  the  duty  to  imports  from  Great 
Britain,  is  now  on  a  high-tariff  basis,  the  policy  of  pro- 
tection having  been  explicitly  adopted  by  the  Conserva- 
tive party  in  1878,  and  transmitted  to  their  opponents 
on  their  accession  to  power  in  1896.  The  German  Em- 
pire, since  the  tariff  of  1879,  has  also  adopted  the  policy 
of  protection,  the  recent  tariff  of  1902  having  further 
raised  the  existing  duties,  especially  those  on  agricul- 
tural products.^  France,  Italy,  and  the  other  Continen- 
tal countries  are  also  under  a  system  of  tariff  protection. 
Of  the  manufacturing  countries  of  the  world,  Great 
Britain  alone  remains  upon  a  free-trade  basis,  while 
even  there  the  future  retention  of  such  a  system  has 
recently  become  a  subject  of  acute  controversy. 

4.  Interference  with  Competitive  Prices ;  Trust 
and  Railroad  Legislation.  Interference  with  the  free- 
dom of  importation  is  only  one  instance  of  the  present 
tendency  towards  legislation  in  contravention  of  the 
formerly  dominant  theory  of  natural  liberty.  We  have 
already  seen  that  in  accordance  with  this  system  it  was 
considered  advisable  that  prices  should  be  left  alto- 
gether to  the  play  of  free  competition  among  buyers 
and  sellers.    It  was  presumed  that  under  a  regime  of 

^  See  W.  H.  Dawson,  Protection  in  Germany,  chap.  ix. 


THE  MODERN   STATE  395 

unrestricted  competition,  the  price  of  any  article  would 
be  in  proportion  to  the  cost  of  producing  it.  For  the 
attainment  of  the  maximum  economic  efficiency,  and 
for  the  satisfaction  of  the  demands  of  social  justice,  it 
seemed  necessary  merely  to  leave  people  alone  to  buy 
and  sell  as  they  pleased  at  such  prices  as  they  should 
arrange  between  themselves.  The  essence  of  tlie  posi- 
tion, however,  lay  in  the  assumption  that  there  would 
be  active  competition  among  a  number  of  persons  pro- 
ducing the  same  article.  The  case  is  altered  if  we 
suppose  the  entire  stock  of  any  particular  commodity 
in  the  hands  of  a  single  seller,  or  what  is  the  same  thing, 
in  the  hands  of  a  group  of  sellers  acting  in  concert. 
AVhere  a  person  has  a  monopoly  of  the  available  stock 
of  a  commodity,  there  is  no  reason,  in  and  of  itself,  why 
he  should  sell  it  at  a  price  representing  the  cost  of 
production,  rather  than  at  any  other  price.  He  is  free 
to  ask  any  price  that  he  likes,  subject  always  to  the 
consideration  that  if  he  asks  too  high  a  price  no  one 
will  buy  the  article  he  wishes  to  sell.  When  we  come 
to  inquire  how  prices  will  in  such  a  case  be  settled,  we 
find  that  a  monopoly  price  follows  a  law  quite  different 
from  that  governing  prices  under  free  competition.^ 
The  adjustment  of  a  monopoly  price  may  be  explained 
as  follows.  The  seller  obviously  cannot  sell  below  the 
cost  of  production,  because  that  would  entail  a  direct 
loss.  He  must,  therefore,  sell  at  a  price  somewhere 
above  the  cost  of  production.  But  it  is  clear  that  the 
lower  the  price  the  greater  will  be  the  number  of 
articles  that  he  sells.    The  whole  amount  of  his  profit 

^  For  the  law  of  monopoly  price,  see  R.  T.  Ely,  Monopolies  and 
Trusts. 


396  THE  PROVINCE  OF  GOVERNMENT 

will  depend,  therefore,  on  two  factors,  the  total  number 
of  sales  and  the  amount  of  profit  on  each  sale.  As 
the  price  rises  the  number  of  buyers  decreases,  though 
probably  not  in  a  regular  progression,  but  irregularly 
and  in  a  jolting  fashion.  There  will  be  found  some- 
where in  the  upward  scale  a  point  of  maximum  profit, 
at  which  the  product  of  the  number  of  sales  multiplied 
by  the  profit  on  each  is  greater  than  at  any  other  point. 
Now  this  point  may  in  some  cases  be  far  above  the  cost 
of  production :  for  example,  in  the  case  of  an  article 
of  prime  necessity,  —  bread,  sugar,  oil,  etc.,  —  any  one 
having  a  complete  monopoly  of  the  available  stock 
could  exact  a  price  much  in  excess  of  the  actual  cost 
of  production. 

In  the  economic  situation  of  the  earlier  part  of  the 
nineteenth  century,  the  monopolization  of  articles  of 
ordinary  production  had  not  appeared  to  any  great 
extent.  The  law  of  price  applying  to  these  conditions, 
though  apprehended  by  the  economists  of  the  day,  as- 
sumed no  particular  importance,  nor  did  it  seem  to 
have  any  immediate  bearing  on  public  policy.  But  in 
our  own  day  the  possibility  of  monopolization  of  ordi- 
nary articles  of  production  has  become  a  significant 
factor  in  the  industrial  situation.  To  this,  various  causes 
have  contributed.  The  increasing  use  of  machinery  ren- 
ders the  initial  cost  of  embarking  on  any  industrial  pro- 
cess constantly  greater.  The  evolution  of  the  principle 
of  joint-stock  undertakings  has  rendered  it  possible  to 
carry  on  production  on  a  very  large  scale,  and  in  con- 
sequence to  considerably  reduce  the  cost  of  each  article 
produced.  This  has  rendered  it  very  difficult  for  small 
concerns  to  compete  with  large  industrial  corporations, 


THE   MODERN   STATE  397 

and  has  set  up  in  the  industrial  world  a  tendency  to- 
wards the  amalgamation  of  similar  businesses  under  a 
common  management.  When  this  amalgamation  has 
proceeded  far  enough  to  cover,  or  at  any  rate  to  domi- 
nate, the  whole  production  of  a  certain  class  of  com- 
modities, then  the  principle  of  competitive  price-making 
no  longer  applies,  and  the  law  of  monoply  price  comes 
into  play.  To  prevent  this  state  of  things  modern 
governments  have  seen  fit  in  some  instances  to  use  their 
legislative  power.  This  is  particularly  the  case  with  the 
United  States,  where  the  process  of  industrial  amal- 
gamation has  been  most  rapid  and  has  occasioned  the 
greatest  public  apprehension.  The  federal  government 
in  1891  passed  an  anti-trust  law  (known  as  the  Sher- 
man Act)  forbidding  contracts  or  combinations  in  re- 
straint of  interstate  trade,  prohibiting  the  monopoliz- 
ing of  any  part  of  the  trade  between  the  states,  etc. 
About  half  of  the  states  have  legislated  against  the 
trusts,  either  by  constitutional  provisions  or  by  statutes. 
A  great  deal  of  such  legislation  has,  however,  been  de- 
clared invalid  by  the  courts,  or  rendered  inoperative 
by  various  kinds  of  evasion.^ 

A  special  case  of  the  interference  of  the  modern 
state  in  regard  to  prices  is  seen  in  legislation  concern- 
ing railroad  rates,  which  are  of  course  prices  charged 
for  transportation  of  persons  and  freight.  A  little  ex- 
amination will  show  that  railroad  rates  differ  from 
most  other  prices  in  a  very  peculiar  way.  We  have 
seen  that  under  free  competition  in  the  production  of 
ordinary  commodities  their  selling  price  will  approxi- 

1  For  anti-trust  statutes,  see  Report  of  the  U.  S.  Industrial  Commis- 
sion, vol.  ii.    See  also  Ernst  von  Halle,  Trusts  (edition  of  1900). 


398  THE  PROVINCE  OF  GOVERNMENT 

mate  to  the  cost  of  production.  Even  where  a  single 
seller  has  a  monopoly  he  will  find  no  advantage  in 
making  sales  below  the  cost  of  production.  But  in  the 
case  of  a  service  performed  by  a  railroad  in  transport- 
ing passengers  or  freight  over  a  certain  distance  the 
"cost  of  production  "  is  of  a  quite  different  character, 
and  stands  in  a  quite  different  relation  to  the  price 
demanded.  In  the  first  place  we  can  see  that  there  is 
very  little,  almost  no  expense  incurred  by  the  railroad 
for  the  particular  transportation  of  any  single  article. 
Supposing  that  a  train  is  scheduled  to  run  between  two 
stations,  ten  miles  apart,  the  cost  of  sending  a  barrel  of 
flour  on  it  (the  additional  expense,  that  is,  actually  in- 
curred by  taking  that  particular  consignment)  consists 
merely  of  the  labor  of  two  or  three  minutes'  handling 
and  an  infinitesimal  quantity  of  extra  coal  by  reason  of 
the  extra  weight  added  to  the  train.  It  must  be  noted 
in  the  second  place  that  as  between  a  distance  of  ten 
miles  and  a  distance  of  one  hundred  miles  the  cost 
is  practically  the  same,  for  only  the  same  amount  of 
handling  is  needed,  and  the  other  expense  is  insignifi- 
cantly small.  There  is  of  course  the  expense  of  run- 
ning the  train  itself  (coal,  wages,  etc.).  Very  obviously 
some  of  the  prices  charged  for  the  passengers  and 
freight  it  carries  must  make  this  good  or  the  train  is 
being  run  at  a  loss.  But  there  is  no  reason  (none,  that 
is,  of  an  economic  character,  and  apart  from  ideas 
of  sentiment,  justice,  etc.)  why  this  charge  should  be 
levied  in  a  proportionate  manner  upon  the  different 
consignments.  Suppose,  for  example,  that  the  state  of 
the  cotton  trade  is  such  that  consignments  of  cotton 
will  be  sent  even  if  the  railroad  chai-ges  a  high  price, 


THE  MODERN   STATE  399 

and  that  the  market  for  flour  is  such  that  no  flour  will 
be  shipped  except  at  a  rate  excessively  low,  it  will 
clearly  be  to  the  advantage  o£  the  railroad  to  charge 
much  for  the  one  and  little  for  the  other.  In  other 
words  each  of  these  two  rates  will  be  of  the  nature  of 
a  monopoly  price,  the  limitation  of  the  charge  being 
found  in  that  above  a  certain  point  the  number  of  con- 
signments begins  to  fall  off.  Over  and  above  the  spe- 
cial expenses  of  running  this  individual  train  the  rail- 
road has  to  meet  its  permanent  and  standing  expenses 
in  the  shape  of  the  interest  charge  upon  its  original 
construction,  and  the  cost  of  maintaining  the  roadbed 
and  terminals.  But  there  is  no  reason  to  assign  these 
charges  proportionately  and  uniformly  among  all  the 
trains  operated,  and  upon  all  the  business  handled. 
Each  train  and  each  consignment  must  of  course  repay 
the  direct  added  cost  which  its  operation  entails.  But 
above  the  extremely  low  minimum  rate  thus  indicated, 
it  is  always  worth  while  to  accept  business,  even  for 
a  small  charge  where  a  larger  cannot  be  had.  In  the 
practical  levy  of  railroad  rates  it  is  therefore  quite  out 
of  the  question  to  distribute  the  total  cost  in  a  propor- 
tionate manner.  Each  service  performed  will  be  sold 
at  a  price  representing  "  what  the  traffic  will  bear  " 
and  not  what  the  traffic  has  cost.  It  will  result  in  con- 
sequence that  the  different  charges  made  by  a  railroad 
may  be  evidently  and  visibly  out  of  proportion  to  their 
relative  cost.  It  may  happen  that  a  greater  charge  is 
made  for  carrying  a  particular  article  a  short  distance 
than  for  carrying  it  a  long  one.  Although  at  first  sight 
this  seems  contrary  to  common  sense  and  to  common 
justice,  it  is  quite  in  keeping  with  the  principles  we 


400  THE  PROVINCE  OF  GOVERNMENT 

have  just  laid  dowTi.  In  transporting  goods  between  two 
places  five  hundred  miles  apart  a  railroad  may  have  to 
encounter  the  opposition  of  competing  lines  or  of  trans- 
portation by  water,  and  may  be  compelled  to  accept  a 
very  low  rate  on  the  freight  it  carries.  But  at  the  same 
time  there  may  very  well  be,  included  in  this  five  hun- 
dred miles,  a  strip  of  one  hundred  miles  which  is  not 
covered  by  any  competing  railroad,  and  which  has  not 
access  to  water  transportation.  As  between  the  towns 
on  this  strip  the  charges  that  the  "  traffic  will  bear " 
are  very  likely  greater  than  the  utmost  charge  that  can 
be  levied  on  the  through  traffic  of  five  hundred  miles.^ 
There  is  a  further  peculiarity  in  the  economic  situa- 
tion of  railroads  in  the  fact  that  active  and  permanent 
competition  between  them  is  practically  impossible.  A 
state  of  keen  competition  induces  the  roads  to  reduce 
charges  to  a  point  which,  while  covering  the  actual  and 
individual  cost  of  the  train  service,  makes  no  provision 
for  the  permanent  interest  and  maintenance  charges  of 
the  railway.  In  such  a  situation  a  poor  road  —  particu- 
larly one  whose  interest  charges  are  already  in  default, 
or  which  is  even  in  the  receiver's  hands  —  is  a  stronger 
competitor  than  a  good  one,  for  it  can  indulge  in  a 
more  reckless  and  suicidal  rate-cutting.  In  practice, 
therefore,  railroads  have  always  found  themselves  com- 
pelled to  enter  into  agreements,  express  or  tacit,  as  to 
the  regulation  of  their  rates.  From  the  point  of  view 
of  the  general  public  such  understandings  look  very 
much  like  a  combined  attempt  on  the  part  of  the  roads 
to  exploit  the  community  for  their  own  benefit. 

^  For  the  theory  of  railroad  rates  see  A.  T.  Hadley,  Bailroad  Trans- 
portation. 


THE  MODERN  STATE  401 

The  distinctive  position  which  the  railroads  thus 
occupy  in  the  industrial  world  has  induced  all  modern 
governments  to  subject  them  to  special  regulation,  and 
to  entirely  abandon  in  reference  to  them  the  principle 
of  non-interference.  In  some  cases,  as  in  Prussia,  Aus- 
tria, Hungary,  the  states  of  the  Commonwealth  of 
Australia,  etc.,  the  state  itself  owns  and  operates  the 
railroads.  In  France  charters  are  granted  to  private 
companies  for  limited  periods,  after  which  the  roads 
revert  to  the  state.  The  chief  railroad  systems  of  the 
country  (some  20,500  miles  of  road  out  of  a  total 
25,500)  will  become  national  property  between  the 
years  1950  and  1960.  Even  while  the  roads  are  in 
private  hands  their  general  relation  to  the  state  is  very 
different  from  that  of  ordinary  business  enterprises. 
A  large  part  of  the  original  permanent  cost  was  de- 
frayed by  the  French  government ;  the  government 
also  guaranteed  the  payment  of  a  fixed  dividend.  In 
return  the  rates  are  fixed  by  the  government  itself,  and 
the  transportation  of  the  mails,  troops,  prisoners,  etc., 
is  made  gratuitous.  In  the  United  States,  although  the 
railroads  *  have  been  left  in  private  bands,  they  have 
been  the  object  of  special  legislative  control  of  both 
the  state  and  the  federal  governments.  The  Interstate 
Commerce  Act  (1887)  provides  that  in  the  case  of 
charges  levied  on  commerce  between  the  states,  no  rail- 
road company  shall  unduly  discriminate  in  favor  of 
particular  persons  or  particular  localities.  The  same 
law  forbids  the  railroads  to  charge  more  for  transporta- 

^  A  full  account  of  the  railroad  question  in  the  United  States  is 
found  in  Professor  Emory  Johnson's  American  Railway  Transporta- 
tion. 


If 


402  THE   PROVINCE  OF  GOVERNMENT 

tion  for  a  shorter  than  for  a  longer  distance  over  the 
same  line,  and  prohibits  the  pooling  of  railroad  earn- 
ings. The  statute  also  establishes  an  interstate  com- 
merce commission  of  five  members  appointed  by  the 
President  of  the  United  States ;  it  is  the  duty  of  this 
body  to  supervise  the  operation  of  the  act,  but  it  has 
no  power  of  itself  to  punish  violations  of  its  provisions 
or  to  fix  rates.  The  provisions  of  the  federal  anti-trust 
statute  of  1891  have  also  been  applied  by  the  courts 
against  the  railroads  in  regard  of  various  forms  of 
combination  that  were  presumed  to  be  in  restraint  of 
commerce  between  the  states.  In  addition  to  the  na- 
tional legislation  most  of  the  states  have  passed  laws 
intended  to  prevent  discrimination  in  freight  and  pas- 
senger rates,  and  to  hinder  undue  combination.  In 
most  states  also  railroad  commissions  are  established, 
in  some  cases  with  duties  that  are  mainly  advisory  and 
statistical,  but  in  others  with  coercive  powers  for  the 
making  and  enforcing  of  rates.  The  Massachusetts 
board  of  railroad  commissioners  is  an  example  of  the 
first  class ;  it  supervises  the  operation  of  the  law  in 
reference  to  the  issue  of  securities,  receives  reports 
from  the  railroad  companies,  and  has  an  advisory  power 
in  regard  to  freight  and  passenger  rates.  In  practice 
its  recommendations  have  great  force,  and  are  usually 
followed  by  the  roads  themselves  or  embodied  in  stat- 
utes of  the  legislature.  On  the  other  hand,  commissions 
such  as  those  of  Minnesota  and  of  Illinois  are  given 
power  to  directly  fix  rates  for  traffic  within  the  state.^ 

^  It  has  been  laid  down  by  the  United  States  Supreme  Court  that 
an  exercise  of  power  of  this  kind  —  the  making  of  a  rate  by  the  com- 
mission itself  —  must  be  subject  to  revision  in  the  courts. 


THE   MODERN   STATE  403 

In  the  United  Kingdom  there  is  also  a  commission  for 
the  supervision  of  the  operation  of  railroads,  estab- 
lished in  1873,  and  rendered  permanent  by  an  act  of 
Parliament  of  1888.  The  schedule  of  maximum  rates 
of  each  railroad  is  subject  to  the  approval  of  the  Board 
of  Trade.  Pooling  is  not  prohibited,  but  discrimination 
is  against  the  law. 

5.  Government  Interference  on  Behalf  of  the 
Working  Class ;  Factory  Laws,  State  Insurance, 
and  Pensions.  The  attitude  of  modern  governments 
towards  the  laboring  class  is  in  many  respects  no  longer 
one  of  imqualified  individualism.  The  general  recog- 
nition of  the  idea  of  social  solidarity  and  of  aggre- 
gate social  duties  towards  the  workers  and  the  poorer 
members  of  the  community  has  profoundly  influenced 
the  legislation  of  our  day.  The  original  factory  acts 
adopted  in  England,  to  which  reference  has  been  al- 
ready made,  have  been  imitated  in  all  the  great  indus- 
trial countries,  and  expanded  into  an  elaborate  code 
designed  to  protect  the  wage-earner  against  the  rigor 
of  unrestrained  competition.  Legislation  of  this  kind 
in  the  United  States  falls  under  state  and  not  under 
federal  jurisdiction.  There  are  still  many  states  of  the 
Union  in  which,  factory  industry  being  but  little  de- 
veloped, no  protective  statutes  have  been  passed.  But 
in  Massachusetts,  New  York,  Pennsylvania,  Ohio,  In- 
diana, Illinois,  and  all  the  great  manufacturing  states, 
factory  legislation  of  a  thorough -going  character  has 
been  adopted.  The  factory  acts  of  these  states  prohibit 
working  people  from  being  employed  under  conditions 
dangerous  to  health  or  life.  They  contain  provisions 
for  fire-escapes,  prevention  of  explosions,  fencing  of 


404  THE  PROVINCE  OF  GOVERNMENT 

machinery,  ventilation,  etc.,  and  provide  for  the  ap- 
pointment of  inspectors  to  supervise  the  operation  of 
the  acts.  The  hours  of  labor  in  the  case  of  women  and 
young  persons  are  also  limited  by  law.  The  labor  of 
adult  women  is  restricted  in  all  the  New  England 
states  (except  Vermont)  and  in  about  ten  other  states ; 
a  ten-hour  day  is  the  usual  limit  prescribed.  All  the 
manufacturing  states  have  legislated  against  excessive 
hours  for  young  persons  (of  either  sex)  and  have  abso- 
lutely prohibited  factory  labor  for  children.  In  Massa^- 
chusetts.  New  York,  and  several  other  states  only 
children  of  at  least  fourteen  years  of  age  may  be  em- 
ployed ;  in  other  states  employment  is  permissible  at 
lower  ages.  In  England,  under  the  general  factory  law 
of  1901,  similar  restrictions  on  industrial  freedom  of 
contract  are  imposed  by  the  government,  both  the  con- 
ditions of  work  and  the  permissible  hours  for  employ- 
ment of  women,  young  persons,  and  children  being 
made  the  subject  of  legislative  interference.  The  Ger- 
man imperial  government  adopted  in  1891  a  factory 
act  of  similar  scope.  In  the  United  States,  Great 
Britain,  and  Germany  legislation  has  not  as  yet  limited 
the  hours  of  employment  of  adult  males ;  but  in  France 
and  in  Austria  the  law  regulates  the  number  of  hours 
that  even  adult  males  may  be  employed  in  factory 
labor,  eleven  hours  a  day  being  assigned  as  the  limit 
in  Austria,  and  twelve  in  France. 

The  altered  attitude  of  the  state  towards  the  working 
class  is  seen  also  in  the  systems  of  compulsory  insu- 
rance and  old-age  pensions,  now  operative  in  various 
countries  of  continental  Europe,  and  in  certain  Austra- 
lasian colonies.    In  Germany  an  imperial  law  of  June 


THE   MODERN   STATE  405 

15,  1883,  provides  for  compulsory  insurance  against 
illness  for  all  working  people  whose  wages  do  not  ex- 
ceed S476  a  year,  the  expenses  of  the  insurance  being 
imposed  jointly  on  working  people  and  employers,  the 
former  paying  two  thirds,  the  latter  one  third  of  the 
cost.  A  similar  law  of  July  6,  1884,  prescribes  com- 
pulsory insurance  against  accidents.  In  each  of  these 
cases  the  government  itself  contributes  nothing ;  but  for 
the  compulsory  old-age  pensions,  established  under  an 
imperial  statute  of  1889,  the  government  contributes 
yearly  towards  each  pension  a  fixed  sum  of  $11.90  over 
and  above  the  amount  accruing  from  the  past  contribu- 
tions of  the  workingmen  and  their  employers.  France 
and  Austria  have  also  instituted  compulsory  state  in- 
surance against  accidents  (in  Austria  against  illness 
also),  and  Italy,  under  a  statute  of  1899,  has  state  in- 
surance both  against  disability  and  old  age.  The  colony 
of  New  Zealand,  by  a  law  of  1898,  established  a  system 
of  old-age  pensions  (with  a  maximum  of  £18  per  an- 
num) to  be  accorded  by  the  government  to  persons  of 
sixty-five  years  of  age  who  had  resided  thirty-five  years 
in  the  colony,  no  previous  contribution  being  exacted 
from  the  recipient.  Persons  possessing  an  income  from 
other  sources  are  not  eligible,  or  only  eligible  as  pen- 
sioners to  the  extent  that  their  income  falls  short  of 
the  pension.  The  tendency  of  the  governments  of  the 
Australian  colonies  to  interfere  vigorously  on  behalf  of 
the  working  class  is  seen  in  the  New  Zealand  statute 
of  1894,  applying  compulsory  arbitration  to  labor  dis- 
putes, and  in  a  similar  statute  of  South  Australia 
enacted  in  the  same  year. 

Even  the  most  extreme  individualists  admitted  that 


406  THE  PROVINCE   OF  GOVERNMENT 

the  protection  which  it  was  the  primary  duty  of  the 
state  to  afford  to  the  citizen  did  not  merely  include 
safeguards  against  physical  violence  and  forcible  rob- 
bery. Protection  of  an  indirect  character,  intended  to 
prevent  fraud  or  culpable  negligence,  was  admitted  to 
be  within  the  proper  sphere  of  the  state  action.  But 
in  the  course  of  the  nineteenth  century  the  category  of 
legislation  of  an  indirectly  protective  character  has  been 
enormously  expanded.  Such  familiar  examples  as  adul- 
teration acts  in  reference  to  food,  acts  in  reference  to 
the  inspection  of  steamboats  and  buildings,  the  grant- 
ing of  certificates  to  engineers,  druggists,  etc.,  will  at 
once  suggest  themselves  in  this  connection.  Prohibi- 
tion acts  in  restraint  of  the  manufacture  or  sale  of  in- 
toxicating liquors,  acts  in  restraint  of  public  gambling, 
etc.,  represent  the  same  legislative  principle  carried  to 
a  further  degree.  In  practice,  the  line  is  extremely 
difficult  to  draw  between  protective  legislation  —  whose 
intention  is  to  guarantee  the  individual  against  exter- 
nal harm  and  to  prevent  him  from  harming  others 
—  and  paternal  legislation,  whose  object  is  to  compel 
him  in  a  positive  direction  for  his  own  good.  The  atti- 
tude of  most  modern  governments  is  not  clearly  defined 
in  this  respect ;  but  there  is  a  large  amount  of  mod- 
ern legislation  which  is  practically  of  a  paternal  char- 
acter. 

6.  Municipal  Control.  Mention  may  be  made  in 
conclusion  of  the  wide  extension  of  state  activity  seen 
in  the  sphere  of  modern  municipal  control.  Under  pre- 
sent conditions  the  supply  of  water  and  light  to  towns 
and  cities  and  the  arrangement  for  interurban  trans- 
portation, telephone  communication,  etc.,  offer  problems 


THE   MODERN   STATE  407 

of  a  peculiar  character.  To  a  great  extent  these  ser- 
vices are  in  their  nature  monopolies ;  they  must  be 
under  a  single  control,  and  cannot,  or  at  any  rate  can 
only  at  an  economic  loss,  be  performed  for  the  com- 
munity by  rival  purveyors.  Separate  telephone  systems, 
separate  gas  and  water  companies,  with  parallel  pipes, 
separate  car  lines  upon  the  same  streets,  are  plainly 
impracticable.  On  the  other  hand,  where  these  enter- 
prises are  placed  unreservedly  in  private  hands,  the 
principle  of  monopoly  price,  as  already  explained,  as- 
serts itself  to  the  detriment  of  the  general  public.  It  is 
necessary,  therefore,  either  that  the  public  authorities 
should  themselves  directly  perform  these  services  for 
the  community,  or  that  the  grant  of  privileges  accorded 
to  a  monopoly  company  should  be  accompanied  by  spe- 
cial restrictions  and  special  regulation  of  the  prices 
to  be  charged.  A  brief  summary  of  the  present  extent 
of  municipal  ownership  may  serve  to  show  how  greatly 
the  functions  of  the  local  organs  of  government  have 
been  expanded  under  recent  conditions.  The  control 
of  waterworks  is  the  most  universal  of  all  municipal 
activities.  Of  the  thirty-eight  cities  of  the  United 
States  having,  under  the  census  of  1900,  a  population 
over  one  hundred  thousand,  all  except  eight  owned 
their  own  waterworks  in  1903.  In  this  majority  are 
included  the  cities  of  New  York,  Chicago,  Philadelphia, 
and  Boston.  In  Canada  more  than  three  quarters  of 
the  towns  and  cities  (including  Montreal  and  Toronto) 
own  their  waterworks.  In  the  United  Kingdom  the 
municipal  ownership  of  waterworks  is  almost  universal, 
and  in  the  continental  cities  of  Europe  it  is  the  usual 
rule.    Very  few  gas  works  in  the  United  States  are 


408  THE  PROVINCE   OF  GOVERNMENT 

under  municipal  operation,  but  the  larger  British  cities 
(except  London,  Liverpool,  and  Dublin)  and  most  Ger- 
man cities  operate  their  own  gas  plants.  In  the  case 
of  street  railways  municipal  ownership  is  very  rare  in 
America,  but  has  been  adopted  in  about  forty  places 
in  Great  Britain,  including  London  and  Manchester. 
Municipal  electric-lighting  plants  are  extremely  com- 
mon in  the  United  States,  being  found  in  Chicago, 
Detroit,  and  elsewhere,  though  ownership  and  opera- 
tion by  private  companies  is  much  more  usual.  Li  the 
United  Kingdom,  on  the  other  hand,  the  majority  of 
electric-lighting  plants  are  operated  by  the  municipali- 
ties. Telephone  service  is  rarely  found  under  munici- 
pal management,  though  in  some  cases,  as  in  Japan 
and  in  Australia,  it  is  directly  conducted  by  the  gen- 
eral government.  Rarer  examples  of  collective  activity 
are  seen  in  municipal  house-building,  sale  of  electric 
power,  etc.  It  is,  of  course,  impossible  to  enter  here 
into  the  discussion  of  the  economic  advantages  or  dis- 
advantages of  municipal  ownership.  Reference  is  only 
made  to  it  in  this  connection  to  illustrate  the  greatly 
widened  sphere  of  state  control  characteristic  of  the 
present  era.^ 

READINGS  SUGGESTED 
Leroy-Beaulieu,  P.,  The  Modern  State  (translation,  1891),  books 

i,  ii. 
Hobson,  J.,  Evolution  of  Modern  Capitalism,  chaps,  iii,  iv,  v. 
Jenks,  J.  W.,  The  Trust  Problem  (1901),  chaps,  iv,  x,  xi. 
Johnson,  E.,  American   Railway    Transportation    (1903),  chap. 

xxix. 

^  For  further  details  see  New  International  Encyclopedia,  article 
"  Municipal  Ownership ; "  Report  of  United  States  Commissioner  of  Labor, 
1900;  Darwin,  Municipal  Trade  (London,  1903). 


THE  MODERN  STATE  409 

FURTHER  AUTHORITIES 

Von  Halle,  E.,  Trusts  (1900). 

Taussig,  F.  W.,  Tariff  History  of  the  United  States  (5th  edition, 
1901). 

Ashley,  P.,  Modern  Tariff  History  (1904). 

Dawson,  W.  H.,  Protection  in  Germany  (1904). 

Ely,  R.,  Monopolies  and  Trusts  (1900). 

Report  of  U.  S.  Industrial  Commission  (1900-02). 

Hoffman,  F.  S.,  The  Sphere  of  the  State  (3d  edition,  1898). 

Bemis,  Municipal  Monopolies  (1899). 

Carey,  Municipal  Ownership  of  Natural  Monopolies  (1900). 

Report  of  U.  S.  Commissioner  of  Labor :  Water,  Gas  and  Electric 
Light  Plants  under  Private  and  Public  Ownership  (1899). 

Willoughby,  W.,  Workingmen's  Insurance  (1898). 

New  Zealand  Year  Book  (annual). 

Bulletin  of  U.  S.  Bureau  of  Labor.  Government  Industrial  Arbi- 
tration (1905). 

Sidgwick,  H.,  Principles  of  Political  Economy  (1883),  book  iii. 


INDEX 


Achaean  League,   235. 

Administrative  courts,  216,217; 
origin  in  France,  217. 

Administrative  law:  in  refer- 
ence to  separation  of  powers, 
151;  nature  of,  216;  opera- 
tion in  France,  217. 

Agreement  of  the  People,  128. 

Alabama  claims,  105;  consti- 
tution of,  132. 

Alexander  VI  (Pope),  104. 

Amendment  of  Constitution, 
130,  131;    Switzerland,  136. 

American  Revolution,  v.  Revo- 
lution, American. 

Analytical  school,  58,  59. 

Anson,  Sir  W.,  on  legisative 
procedure,  156. 

Anti-federalists,  338. 

Arbitration,  International,  v. 
International  Arbitration. 

Aristotle,  25;  on  patriarchal 
theory,  43;  cycle  theory,  46; 
cycle  of  government,  liO. 

Arrondissement,  299. 

Assessment,  v.  Local  Taxation, 
Property  Tax. 

Austin,  view  of  sovereignty,  54; 
on  International  Law,  102. 

Australia,  federal  powers  in.  252; 
constitution  of,  252,  253. 

Australian  Constitution,  pro- 
visions for  deadlock,  174. 

Bagehot,  W.,  on  separation  of 
powers,  148 ;  on  legislative 
procedure,  155. 

Ballot,  double,  348. 

Bastiat,  F.,  364. 

Bellamy,  E.,  377. 

Bentham,  Jeremy,  criticism  of 
social  contract,  31. 

Bicameral  system,  159  et  seq.; 


Lecky  on,  160 ;  prevalence 
of,  160;    reasons  for,  161. 

Blackmar,  Professor,  on  Span- 
ish colonial  system,  264. 

Blackstone  on  separation  of 
powers,  143. 

Blair,  Chancellor,  213. 

Bluntschli,  J.  K.,  criticism  of 
social  contract,  31  ;  view 
of  sovereignty,  55;  classifi- 
cation of  states,  116,  117. 

Boston,  government  of,  307. 

Bourinot,  Sir  J.,  on  treaty- 
making  power,  281. 

British  North  America  Act, 
249. 

Bryce,  J.,  on  sovereignty,  61; 
on  legislative  procedure,  156. 

Bundesrath,  German,  167;  pow- 
ers of,  171;  Switzerland,  183. 

Burgess,  on  sovereignty,  53; 
on  federal  states,  237,  238. 

Cabinet,  British,  144,  145;  de- 
scription of,  148;  its  evolu- 
tion, 192-194. 

Cabinet  government,  distin- 
guished, 118,  122, 191  etseqq.; 
in  France,  195;  in  Italy,  197. 

Canada,  senate  of,  166;  power 
of  courts,  214;  federal  pow- 
ers in,  249. 

Caracalla,  18. 

Carlyle,  T.,  on  doctrine  of 
laissez  faire,  368. 

Casa  de  Contratacion,  264. 

City  Government,  U.   S.,  306. 

Civil  Service  Act,  204. 

Civil  Service,  British,  200,  201; 
U.  S.,  202,  203. 

Chamber  of  Deupties,  parties 
in.  351. 

Charlemagne,  94. 


412 


INDEX 


Charters,  colonial,  126. 

Church,  relation  to  Holy  Ro- 
man Empire,  99. 

Closure  in  House  of  Commons, 
159;    in  U.  S.  Senate,  158. 

Colonial  Government,  v.  Col- 
onies. 

Colonial  policy,  British,  265  ; 
British  in  nineteenth  century, 
271  et  seqq.;  French,  265. 

Colonies,  government  of,  258 
et  seqq.;  area  of,  258;  methods 
of  acquisition,  259,  260;  of 
ancient  world,  261 ;  in  Amer- 
ica, 264  et  seqq.;  self-gov- 
erning, 272  et  seqq.;  future 
of  British,  273  et  seqq.;  pres- 
ent British  system,  276,  277; 
crown,  277  ;  representative, 
279;  responsible,  279;  rela- 
tion of  British  to  home  gov- 
ernment, 280;  recent  colo- 
nial expansion,  285;  France, 
285,  286;  Germany,  286, 
287;   U.  S.,  287. 

Comitia  Tributa,  175. 

Committee  of  Public  Safety, 
183. 

Common  faith,  not  a  requisite, 
19. 

Common  law,  61. 

Commons,  House  of,  procedure, 
156,  159;  closure,  159;  con- 
stitutional powers  of,  169, 
172. 

Commune,  299. 

Compact,  governmental,  27. 

Confederacy,  Southern,  237. 

Confederation,  Articles  of,  236, 
246. 

Congress,  Continental,  236 ; 
powers  of  U.  S.,  247,  248. 

Constantine,  94. 

Constitution,  121  et  seqq.;  writ- 
ten, 123-126;  relation  to 
courts  of  law,  130,  131; 
amendment  of,  130,  131; 
scope  of,  132  et  seqq.;  of  Ala- 
bama, 132;  of  Switzerland, 
133;  made  by  convention, 
136;  provisions  in  state  con- 
stitutions for  direct  legisla- 


tion, 179;  U.  S.,  interpreta- 
tion of  by  the  courts,  255. 

Constitutional  law,  133,  143 ; 
British,  133. 

Constitutional  monarchy,  185, 
186. 

"Contrat  Social,"  29. 

Convention,  342. 

Council  of  Four  Hundred,  175. 

County,  U.  S.,  302  et  seqq. 

Courts  of  law,  power  to  inter- 
pret constitution,  213. 

Crown  colonies,  277. 

Cycle,  the  Aristotelian,  46. 

Dante,  on  the  papacy  and  em- 
pire, 94. 

Declaration   of   Paris,   98. 

Declaration  of  the  Rights  of 
Man,  74. 

Democrats,  339,  340. 

Democracy,  progressive  growth 
of,  50,  51. 

Department,  French,  299,  312. 

Departments  of  executive  gov- 
ernments, 199  et  seqq.;  table 
of,  206. 

Dicey,  A.  V.,  on  sovereignty, 
64,  65. 

Dicey,  E.,  definition  of  con- 
stitution, 121;  on  respon- 
sibility of  executive  officers, 
211. 

Direct  legislation,  174  et  seqq. 

Direct  nomination,  347. 

Divine  origin  of  state,  34. 

Disraeli,  on  colonial  policy,  272. 

Ecclesia,  175. 

Education  Act,  England,  310. 

Electorate,  207  et  seqq. 

Embargo,  256. 

England,  colonial  policy  of, 
265;  local  government  in, 
308;  local  government  in, 
308  et  seqq. 

Erfurt,  congress  of,  380. 

Esprit  des  Lois,  143. 

Executive  (branch  of  govern- 
ment), 142;  the,  181  et  seqq.; 
plural  executives,  183;  state 
governments  of  U.  S.,   198; 


INDEX 


413 


hereditary,  184-186;  elected, 
186  et  seqq.;  responsibility  to 
the  courts,  211. 
Executive  power,  distinguished, 
141. 

Factory  acts,  368,  369. 

Factory  laws  modern,  403, 
404. 

Federal  government,  distin- 
guished, 118,  233  et  seqq., 
Greek  federation,  235;  classi- 
fication of,  239;  distinguished 
from  confederacy,  239;  sov- 
ereignty in,  240;  distribution 
of  federal  power,  244-246; 
U.S.,  247-249;  Canada,  249; 
German  Empire,  250. 

Federalist,  on  separation  of 
powers,  146. 

Federalists,  338. 

Filmer,  Sir  Robert,  34. 

Finley,  Sir  Robert,  on  inter- 
national arbitration,  108. 

Fiske,  J.,  on  separation  of 
powers,  153. 

Force,  theory  of,  36. 

France,  cabinet  government 
in,  195;  colonial  policy  of, 
265;  recent  colonial  expan- 
sion of,  285,  286;  local  gov- 
ernment in,  311,  312. 

Free  trade,  366 ;  critique  of, 
388. 

Freeman,  W.,  on  Achaean 
league,  235. 

French  Revolution,  illustrating 
cycle  of  government,  114. 

Fundamental  Orders  '  of  Con- 
necticut, 127. 

Fundamental  Statute  of  Italv, 
129. 

General  council,  312. 

German  Confederation,  237, 
246. 

German  Empire,  federal  pow- 
ers in,  250. 

Germanv, ministers,  196;  courts 
in,  215;  federal  units  of,  243; 
recent  colonial  expansion, 
286,  287. 


Gierke,  on  organic  theory,  86. 

Gotha,  congress  of,  380. 

Government,  distinguished 

from  state,  society,  and  na- 
tion, 16  et  seqq.;  province  of, 
357  et  seqq. 

Governmental  compact,  27. 

Greece,  colonies  of,  26. 

Greeks,  international  relations 
of,  92. 

Gregory  VII,  36. 

Grotius,  on  international  law, 
95,  96. 

Group  system,  of  party  gov- 
ernment, 350,  351. 

Gumplowitz,  on  organic  theory, 
86. 

Hague  tribunal,  106. 

Haller,  L.  v.,  on  origin  of 
government,  38,  39. 

Hare,  T.,  on  representation  of 
minorities,  229. 

Hawaii,  287. 

Hereditary  executives,  184. 

Hobbes,  T.,  27;  on  external  re- 
lations of  states,  89. 

Holland,  T.,  14. 

Home  Rule  Bill,  159. 

Holy  Roman  Empire,  18. 

House  of  Commons,  v.  Com- 
mons, House  of. 

House  of  Lords,  v.  Lords,  House 
of. 

Hovas,  45. 

Humboldt,  W.  von,  on  scope 
of  government,'360,  361. 

Hume,  David,  criticism  of 
social  contract,  31. 

Hungarv,  nature  of  constitu- 
tion, 122,  123. 

India,  government  of,  282. 

Individualism,  357  et  seqq.;  in 
U.  S.,  361 ;  J.  S.  Mill  on,  362. 

Industrial  commission,  on  pro- 
perty tax,  329. 

Industrial  revolution,  363. 

Initiative,  174  et  seqq. 

Instrument  of  government,  128. 

Insurance,  state,  404,  405. 

International    arbitration,  104 


414 


INDEX 


et  seqq.  ;  examples  of,  105; 
treaties  respecting,  107. 

International  law,  90,  et  seqq. ; 
definition  of,  90,  91;  modern 
period  of,  95;  scope  of,  99; 
of  peace,  100;  propriety  of 
the  term,  100. 

International  relations,  divi- 
sion into  three  periods,  91. 

Interpellation,  351. 

Imperial  federation,  283-285. 

Iron  Law  of  Wages,  373. 

Italy,  senate  of,  166;  cabinet 
system  of,  197. 

Jackson,  Andrew,  203,  339. 

Jellinek,  G.,  definition  of  his- 
tory, 8;  classification  of  fede- 
ration, 239. 

Jenks,  E.,  on  patriarchal  theory, 
44;  military  origin  of  the 
state,  48;  on  government  of 
Victoria,  174. 

Johnston,  President,  203. 

Judges,  tenure  of  British,  209; 
tenure  of  U.  S.,  209;  France, 
209;   Prussia,  209. 

Judicial  power,  distinguished, 
141. 

Judiciary,  207  etseqq.;  functions 
of,  207,  208. 

Jus  Feciale,  93. 

Jus  Gentium,  93. 

Justice  of  the  Peace,  England, 
308,  309. 

Kant,  view  on  social  contract, 
33;  on  individualism,  360. 

Laif^fsez  faire,  doctrine  of,  363; 
Carlyle  on,  368,  369. 

I^andesgemeinde,  175. 

Lassalle,  F.,  380. 

liaw,  nature  of,  53;  sources 
of,  62;  international,  v.  In- 
ternational Ijaw;  of  nature, 
96  ;  constitutional,  v.  Con- 
stitutionnl  Law;  administra- 
tive, ri.  Administrative  Law. 

Lawrence,  T.  J.,  on  interna- 
tional law,  91. 

Lecky,   on    bicameral   system. 


160;  on  colonial  policy,  268, 
270. 

Legislative  power,  distin- 
guished, 141;  Story  on,  142. 

Legislature,  154  et  seqq.;  num- 
ber of  members,  155;  proce- 
dure, 155. 

Leviathan,  27. 

Liberty,  71,  etseqq.;  different 
meanings  of,  72;  natural,  72; 
civil,  74;  constitutional,  76; 
national,  76;  in  the  U.  S., 
77  ;  in  Great  Britain,  78  ;  in 
France,  78. 

License  taxes,  330. 

Lieber,  F.,  on  liberty,  73. 

Local  government,  292  et  seqq. ; 
distinguished  from  central, 
293-295;  areas  of,  296  et 
seqq.;  United  States,  298 
France,  299;  Saxori,  300 
local  autonomy,  301  et  seqq. 
England,  308;  Saxon,  310 
France,  311,  312;  Prussia, 
315. 

Local  taxation,  U.  S.,  316  et 
seqq. ;  England,  321-323  ; 
France,  323-325;  Prussia, 
326,  327;  reform  of,  328  et 
seqq. 

Locke,  J.,  27. 

London,  government  of,  311. 

Lords,  House  of,  British,  163, 
164;  powers  of,  170;  consti- 
tutional powers,  170,  172. 

Lords,  House  of,  Prussian,  164. 

Lowell,  L.,  on  separation  of 
powers,  152,  153  ;  on  Swiss 
federal  government,  251. 

Louisiana  purchase,  256,  260. 

Madison,  President,  203. 
Maine,  Sir  H.,  criticism  of  Aus- 

tinian  School,  58  et  seqq. 
Malthus,  R.,  364. 
Marshall,  Chief-Justice,  99;  on 

implied  powers,  256. 
Marx,  theory  of  origin  of   the 

state.  48;    doctrines  of,  372. 
Massachusetts,     character     of, 

126,  265. 
Matriarchal  theory,  42. 


INDEX 


415 


May,  Sir  T.  Erskine,  Lord  Farn- 

borough,  on  origin  of  parties, 

336. 
Mayflower,  32. 
Mayflower  Covenant,  127. 
M'Kechnie,  on  sovereignty,  64; 

on  organic  theory,  82. 
McLennan,  J.  F.,  on  matriarchal 

theory,  43. 
Mill,  J.  S.,  on   women's  rights, 

226. 
Minorities,   representations   of, 

228  et  seqq. 
Mohl,    classification   of   states, 

117. 
Montesquieu,    classification    of 

states,  116;   on  separation  of 

powers,  143. 
Morris,  Gouverneur,  on  Consti- 
tuent Assembly,  155. 
Municipal  ownership,  406-408. 

Nation, distinguished  from  state, 

society,  and  government,  16 

et  seqq. 
National  convention,  343. 
Nature,  state  of,  23, 30;  law  of, 

196. 
Navigation  acts,  266;  repeal  of, 

365. 
Neutral  commerce,  97. 
New  England  federation,  244. 
New  York,  government  of,  307. 

Octroi,  324,  326. 

Odgers,    Dr.    W.,   on   areas   of 

local  government  in  England, 

300. 
Origins    of    state,    22 ;    divine 

origin  of  state,  34. 

Paine,  T.,  on  hereditary  princi- 
ple, 163. 

Papacy,  relation  to  Holy  Ro- 
man Empire,  94. 

Paris,  treaty  of,  1763,  97. 

Parliament,  British ;  sovereignty 
of,  57,66;  supremacy  of,  212. 

Parliamentary  government,  dis- 
tinguished, 118,  191  et  seqq. 

Parish,  England,  310. 

Parties,  political,  organization 


of  in  U.  S.,  340  et  seqq.;  v. 
also  Party  Government  in 
Great  Britain,  348;  France, 
351;  Germany,  352;  British, 
353. 

Party  government,  322  et  seqq. ; 
Gold  win  Smith  on,  334;  ra- 
tional basis  of,  333,  334; 
origins  in  England,  336;  ori- 
gins in  U.  S.,  338;  continen- 
tal Europe,  350,  351. 

Patriarca,  35. 

Patriarchal  theory,  42. 

Peace  conference,  106. 

Peerage,  of  United  Kingdom, 
164;  Irish,  164;  Scotch,  164. 

Pensions,  old  age,  404,  405. 

Philippines,  cession  of,  260; 
government  of,  288-290. 

Plantation  covenant,  32,  127. 

Plato,  25;   cycle  theory,  47. 

Political  science,  definition  of, 
3;  scope  of,  4,  5;  relation  to 
history,  6,  7;  relation  to  polit- 
ical economy,  8. 

Political  sovereignty,  criticism 
of,  67  et  seqq. 

Pollock,  Sir  F.,  on  development 
of  law,  103. 

Polybius,  on  separation  of 
powers,  143. 

Populist  party,  favors  direct 
legislation,  180. 

Porto  Rico,  288. 

Portugal,  colonial  expansion  of, 
263. 

Prefect,  312,  313. 

President  U.  S.,  187;  term  of 
office,  190. 

President,  France,  189,  191. 

Presidential  government,  191 
et  seqq.;  in  Italy,  197. 

Primary,  342;  primary  law, 
346. 

Property  tax,  317-319. 

Protection,  theory  of,  389  et 
seqq.  ;  modern  protective  tar- 
iffs, 393,  394. 

Proudhon,  376. 

Prussia,  ministers,  196;  method 
of  voting  in,  231;  local  gov- 
ernment in,  315. 


416 


INDEX 


Quebec  act,  272. 

Radicalism,  384. 

Railroad  Legislation,  394  et 
seqq. ;  rates,  399,  400;  com- 
missions; 402. 

Referendum,  174  et  seqq. 

Reform  acts:  Act  of  1832,  223; 
Act  of  1867,  223. 

Reichstag,  parties  in,  352. 

Representation  of  the  People 
Act,  223. 

Representative  colonies,  279. 

Republicans,  339,  340. 

Responsible  government,  distin- 
guished, 118. 

Revolution,  American,  268  et 
seqq. 

Ricardo,  D.,  364. 

"  Rights  of  Man,"  74,  163. 

Ritchie,  D.  G.,  on  sovereignty, 
64,  68. 

Rogers,  Sir  F.  on  colonial 
pohcy,  273. 

Rousseau,  J.  J.,  27;  classifica- 
tion of  states,  116. 

Salisbury,  Lord,  on  interna- 
tional law,  100. 

Schaffle,  A., on  organic  theory, 
82  et  seqq. ;  criticism  of  or- 
ganic theory,  86,  87. 

School  district,  England,  309, 
310. 

Secretary  of  State,  U.  S.,  199. 

Seeley,  J.  R.,  7. 

Separation  of  powers,  influ- 
ence in  America,  145;  in 
Massachusetts  constitution, 
145;  in  federal  Constitution 
of  U.  S.,  146;  influence  in 
France,  147;  adopted  by 
Constituent  Assembly,  147; 
in  French  constitution  of 
1795,  147;  in  existing  gov- 
ernments, 148;  analyzed  by 
Bagehot,  148;  absent  in 
French  government,  149;  ab- 
sent in  Italian  government, 
149;  criticism  of,  151;  pro- 
cedure, 155. 

Self-government,    granted     to 


British  colonies,  272,  279; 
local,  309. 

Senate,  Canada,  166;  Italy, 
166;  Cuba,  167;  Brazil,  167; 
French,  168;  powers  of  U.S., 
170;  powers  of  Canadian, 
171;  relation  to  cabinet  in 
France,  195. 

Smith,  Adam,  364. 

Smith,  Goldwin,  on  direct  legis- 
lation, 176;  on  U.  S.  Con- 
stitution, 241. 

Social  contract,  25  et  seqq. 

Social  Democrats,  v.  Socialism. 

Socialism,  371  et  seqq. ;  pro- 
gramme of,  375;  in  Germany, 
378  et  seqq.;  France,  382; 
England,  382,  383;  U.  S., 
383. 

Socialist  party  in  Prussia,  231. 

Society,  distinguished  from 
state,  government,  and  na- 
tion, \%  et  seqq. 

Sovereignty,  52,  et  seqq. ;  lo- 
cation of,  56  et  seqq. ;  in  Brit- 
ish Empire,  56,  57;  in  U.  S., 
57,  58;  in  France,  58;  po- 
litical, 63;  dual  or  divided, 
69;  in  federal  government, 
240. 

Spain,  colonial  system,  of,  262, 
263. 

Sparta,  kings  of,  183. 

Spencer,  H.,  origin  of  govern- 
ment, 36;  an  organic  theory, 
82  et  seqq. ;  spoils  system,  203; 
on  scope  of  government,  366; 
criticism  of  organic  theory, 
86,  87. 

State,  analysis  of,  12,  13;  defi- 
nition of,  15;  distinguished 
from  society,  government, 
and  nation,  16  et  seqq. ;  ideal, 
20;  origin  of,  22;  of  nature, 
23,  30;  divine  origin  of,  34; 
external  aspect  of,  89  et  seqq.; 
organic  theory  of,  79 ;  form  of, 
1 10  e/  .=seqq. ;  Aristotle's  clas- 
sification, 110,  111;  table  of 
classification,  120;  despotic, 
1 19 ;  democratic,  119;  modern 
functions  of,  386  et  seaa. 


INDEX 


417 


Stephen,  Sir  James,  on  sover- 
eignty. 61. 

Story,  on  legislative  power, 
142. 

Suffrage,  218  e<  segg. ;  universal 
218,   219;     British,   219;    in 
Revolutionary   France,   229 
French,  221;    German,  221 
U.    S.,    221  ;     female,    222 
negro,  227. 

Switzerland,  constitution  of, 
133;  direct  legislation  in,  177, 
178;  courts  in,  215;  history 
of  its  federation,  235;  as  a 
confederacy,  241  ;  federal 
powers  in,  250,  251. 

Tariff,  colonial,  280,  281;  in- 
sular tariff  question,  290. 

Tasmania,  system  of  voting  in, 
231. 

Taxation,  v.  Local  Taxation, 
Property  Tax,  etc. 

Theory  of  force,  36. 

Tories,  337. 

Town  meeting,  178,  302,  303, 
305. 

Towns,  government  of,  i'.  City. 

Township,  U.  S.,  302  et  seqq. 

Trajan,  94. 


Treatise  on  government,  29. 
Treaty  of  Washington,  98. 
Trust  legislation,  394  et  seqq. 

Unicameral  legislatures,  160. 

Unitary  government,  distin- 
guished, 118. 

United  States,  federal  powers 
in,  247-249;  dependencies, 
287;  local  government  in, 
296;  local  taxation  in,  316. 

Upper  houses  of  legislatures,  164 
et  seqq. 

Uri,  177. 

Utrecht,  treaty  of,  97. 

Vote,  V.  Suffrage. 

Wages,  Iron  Law  of,  373. 

Walker,  on  Jus  Gentium,  93. 

Washington,  treaty  of,  98. 

Westphalia,  peace  of,  91,  92, 
95. 

Westphalia,  treaty  of,  236. 

Whigs,  British,  337;  U.  S.,  339. 

Wilson,  W.,  on  nature  of  law, 
62;  on  cvcle  of  government, 
113. 

Woolsey,  T.,  definition  of  con- 
stitution, 121. 


Electrotyped  and  printed  by  H .  O.  Houghton  &*  Co, 
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